Post on 02-Aug-2020
STATE OF MICHIGAN
IN THE 67TH DISTRICT COURT, GENESEE COUNTY
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
NICOLAS LEONARD LYON,
Defendant.
____________________________________/
Case No. 17T-01355-FY
Hon. David J. Goggins
John J. Bursch (P57679)
BURSCH LAW PLLC
9339 Cherry Valley Avenue, S.E., Unit 78
Caledonia, Michigan 49316-0004
(616) 450-4235
jbursch@burschlaw.com
Larry C. Willey (P28870)
Charles E. Chamberlain, Jr. (P33536)
Britt M. Cobb (P69556)
WILLEY & CHAMBERLAIN LLP
300 Ottawa Avenue, N.W., Suite 810
Grand Rapids, Michigan 49503-2304
(616) 458-2212
Attorneys for Defendant
Todd F. Flood (P58555)
Special Assistant Attorney General
______________________________________________________________________________
DEFENDANT LYON’S POST-HEARING MEMORANDUM
ii
Table of Contents
Table of Contents ............................................................................................................................ ii
Table of Authorities ....................................................................................................................... iii
Introduction ......................................................................................................................................1
Background ......................................................................................................................................2
Overview of MDHHS and Director Nick Lyon ...................................................................2
Key Events and Non-Events ................................................................................................2
The Prosecutor’s “Facts” .....................................................................................................6
Standard of Review ..........................................................................................................................8
Argument .........................................................................................................................................9
I. The prosecutor cannot establish each element of a homicide charge (Counts I & II) .........9
A. The prosecutor cannot prove causation ..................................................................10
1. Factual causation ........................................................................................10
a. There was ample notice .................................................................11
b. Notice from Director Lyon would not have changed
things ............................................................................................12
2. Proximate causation ...................................................................................15
B. The prosecutor cannot prove legal duty .................................................................17
C. The prosecutor cannot prove that Director Lyon knew of facts
giving rise to any hypothetical duty .......................................................................21
D. The prosecutor cannot prove that Director Lyon willfully neglected
or refused to perform a duty in a manner that was grossly negligent
to human life ..........................................................................................................22
II. The prosecutor cannot establish each element of misconduct in office (Count III) ..........24
A. The prosecutor has brought the wrong charge .......................................................24
B. The prosecutor cannot establish each element of a misconduct-in-office
charge (Count III) ..................................................................................................25
1. The prosecutor again cannot prove duty ....................................................25
2. The prosecutor cannot prove malfeasance/misfeasance ............................26
iii
3. The prosecutor cannot prove that Director Lyon acted corruptly ..............29
III. The prosecutor cannot establish each element of willful neglect of duty (Count IV) .......31
Conclusion .....................................................................................................................................31
iv
Table of Authorities
Cases
Bouie v City of Columbia, 378 US 347 (1964) ..................................................................19
DHHS v Genesee Circuit Judge, 318 Mich App 395; 899 NW2d 57 (2016) ....................29
Hobrla v Glass, 143 Mich App 616; 372 NW2d 630 (1985) ............................................21
People v Albers, 258 Mich App 578; 672 NW2d 336 (2003) ...........................................21
People v Anderson, 501 Mich 175; 912 NW2d 503 (2018) ............................................8, 9
People v Beardsley, 150 Mich 206; 113 NW 1128 (1908) ..........................................20, 21
People v Carlin, 239 Mich App 49; 607 NW2d 733 (1999) .......................................25, 26
People v Doyle, 451 Mich 93; 545 NW2d 627 (1996) ......................................................19
People v Feezel, 486 Mich 184; 783 NW2d 67 (2010) .....................................................15
People v General Dynamics Land Systems, Inc, 175 Mich App 701;
438 NW2d 359 (1989) ...........................................................................................21
People v Giddings, 169 Mich App 631; 426 NW2d 732 (1988) .......................................19
People v Hardiman, 466 Mich 417; 646 NW2d 158 (2002) ...............................................8
People v Hudson, 241 Mich App 268; 615 NW2d 784 (2000) ...........................................8
People v Jackson, 176 Mich App 620; 440 NW2d 39 (1989) .............................................9
People v Mason, 247 Mich App 64; 634 NW2d 382 (2001) ..............................................8
People v Milton, 257 Mich App 467; 668 NW2d 387 (2003) ..........................................29
People v Sails, No. 330192 (Mich Ct App Apr 20, 2017) .................................................20
People v Selwa, 214 Mich App 451; 543 NW2d 321 (1995) ..............................................8
People v Thomas, 85 Mich App 618; 272 NW2d 157 (1978) ...........................................19
People v Tims, 449 Mich 83; 534 NW2d 675 (1995) ........................................................10
People v Waterstone, 296 Mich App 121; 818 NW2d 432 (2012) ....................................24
People v Wilcox, 83 Mich App 654; 269 NW2d 256 (1978) ...............................................9
v
People v Zak, 184 Mich App 1; 457 NW2d 59 (1990) ......................................................10
Stitt v Holland Abundant Life Fellowship, 462 Mich 591;
614 NW2d 88 (2000), as amended (Sept. 19, 2000) ..............................................15
United States v Lanier, 520 US 259 (1997) .......................................................................19
Statutes
MCL 325.73 .......................................................................................................................18
MCL 325.74 .......................................................................................................................18
MCL 325.75(3) ..................................................................................................................18
MCL 325.76 .......................................................................................................................18
MCL 333.2205(1) ..............................................................................................................17
MCL 333.2221 .................................................................................................17, 20, 21, 25
MCL 333.2221(1) ........................................................................................................18, 19
MCL 333.2231 .............................................................................................................17, 18
MCL 333.2231(1) ..............................................................................................................18
MCL 333.2231(2) ..............................................................................................................18
MCL 333.2235(2) ..............................................................................................................19
MCL 333.2886 ...................................................................................................................10
MCL 333.2871 ...................................................................................................................10
MCL 750.478 .....................................................................................................................24
MCL 750.505 ...............................................................................................................24, 25
Other Authorities
63C Am Jur 2d, Public Officers and Employees, § 371 (1997) ........................................25
M Crim JI 16.13 ...................................................................................................................9
M Crim JI 16.17 .................................................................................................................22
vi
M Crim JI 16.18 .................................................................................................................22
Perkins & Boyce, Criminal Law (3d ed) ...........................................................................25
1
INTRODUCTION
The outbreak of Legionnaires’ disease in Flint is undeniably tragic. But that does not mean
Director Nick Lyon is responsible for the outbreak or any deaths. To the contrary, despite more
than nine months of testimony, the prosecutor has insufficient evidence for a bind over regarding
multiple elements of every charge. Certain failures of proof are particularly glaring.
Regarding the two manslaughter charges, the prosecutor must prove that Director Lyon’s
alleged failure to warn about Legionnaires caused Mr. Robert Skidmore and Mr. John Snyder to
die. But the evidence shows that the hospitals and medical providers in the community—including
the entire McLaren Hospital provider network—had been pointedly warned about Legionnaires at
MDHHS’ direction. There is no evidence that, had Director Lyon issued his own warning, Messrs.
Skidmore and Snyder or their treating physicians would have acted any differently. And McLaren
Hospital’s own failure to warn was a superseding cause the prosecutor completely ignores. In an
act of desperation, the prosecutor now suggests, for the very first time, that Director Lyon should
have ordered the water supply switched back to DWSD. There is no evidence that the Director
even had that power, much less that doing so would have been prudent.
As for the charge of misconduct in office, there is no evidence supporting the allegation
that Director Lyon “delegated” the investigation of the Legionnaires outbreak to the Flint Area
Community Health and Environmental Partnership (FACHEP), nor that he impeded FACHEP in
its investigation. To the contrary, MDHHS secured funding from the Legislature for FACHEP’s
proposed work promptly and as a priority. And there simply is no other alleged misconduct.
Absent specific evidence supporting each element of every charge, it would be a grave
mistake to bind over Director Lyon for trial. Doing so will inflict irreparable harm on his
professional career and family, and it will dangerously chill all Michigan public servants,
especially executive officers. The charges should be dismissed immediately.
2
BACKGROUND
Overview of MDHHS and Director Nick Lyon
As explained in the pre-hearing briefs, MDHHS is massive, with more than 14,000
employees (30% of the entire state workforce) and a $29.2 billion budget (45% of total Michigan
spending). MDHHS has more than 220 programs through some 6,600 contracts, and just one
person to administer it—Director Nick Lyon. (I Becker 77-78; XXI Hanley 9.)
Director Lyon began working for what was then the Michigan Department of Community
Health (DCH) in 2003 and became its Chief Deputy in August 2011. He is not a scientist or
epidemiologist (I Becker 78-79); he is a public administrator, and there are numerous other key
MDHHS staff with medical and infectious-disease expertise. As one would expect from the head
of a 14,000-person organization, Director Lyon necessarily relies on these key staff members to
tell him when he needs to be more involved or to take official action.
Director Lyon became Director of DCH on September 29, 2014. In February 2015, just
weeks after he was notified about a Legionnaires wave in Flint, DCH merged with the Department
of Human Services and became MDHHS. (Ex 4.) Director Lyon is the new agency’s first director,
and his 2015 consisted of merging Michigan’s two largest agencies, obtaining funding for his 220
programs, proposing legislation (e.g., regarding opioids), meetings in Washington, D.C., for
Medicare and Medicaid, supervising many MDHHS litigation matters including a federal-court
consent decree governing the State’s entire child-welfare system, and numerous special projects,
including Ebola preparation, the Kalamazoo Psychiatric Hospital, and projects in Detroit.
Key Events and Non-Events
At the July 11th hearing, Director Lyon presented a comprehensive timeline of events
reflected in the record, beginning with the Flint municipal water switch in April 2014 and ending
with a detailed discussion about what Director Lyon’s interactions with FACHEP in the summer
3
and fall of 2016. For the Court’s convenience, a replica of that timeline with all Transcript and
Exhibit citations is attached as Addendum A: Timeline of Key Events. A second timeline tracks
the number of Legionnaires cases by month, compared to McLaren intervention measures, and is
attached as Addendum B.
The prosecutor also made a great number of statements at the July 11th hearing, often
without testimony or exhibit citations and in a scattershot order. Many of these statements have no
support in or are flatly contradicted by the record. Others are simply irrelevant to Director Lyon
and the prosecutor’s charges. For the Court’s convenience, a summary of those statements—and
what the record actually reflects—are attached as Addendum C: Facts, Not Words (Prosecutor’s
Argument). A second summary details similar discrepancies in the prosecutor’s post-hearing brief
and is attached as Addendum D: Facts, Not Words (Prosecutor’s Brief).
In sum, Director Lyon first learned about Legionnaires on January 28, 2015. The issue was
serious, but it was obvious that MDHHS staff would be pursuing an investigation. (III Miller 61-
62.) There was a lot of speculation about the cause due to a lack of information (Ex 3), and there
was insufficient information to go public (III Miller 47-48). Chief Deputy Becker was satisfied
that the appropriate MDHHS experts were involved and working on the issue. (I Becker 83-84.)
And Director Lyon specifically asked Dr. Miller, the state’s top epidemiologist, to be kept
informed. (II Miller 95.) It is undisputed that Dr. Miller did not recommend to Director Lyon that
a public notice be issued. (III Miller 121.) And only two days later, MDHHS suggested to GCHD
that a Legionella notice go out to the entire Flint-area medical community, providing GCHD a
MIHAN example to use for that purpose. (Exs 24, DA.)
At that point, Director Lyon realized there was a potential problem, and he did what a
reasonable person in his shoes would have done (i.e., a public administrator, not a scientist or
epidemiologist, about to merge the State’s two largest agencies, totaling 14,000 staff): ensure that
4
the Department’s top staff and experts were fully engaged. That is precisely what happened. The
entire premise of the prosecution’s argument is that Director Lyon should have known the Flint
River water was the cause of the outbreak on January 28, 2015, and should have acted accordingly.
But the evidence is that at that time, the source of the outbreak “was all speculation because we
don’t have the case information that we need yet.” (Ex 3).
Indeed, no one brought the issue of Legionnaires to Director Lyon’s attention again until
there was communication with Dennis Muchmore on July 22, 2015, well after Messrs. Skidmore
(May 13-19, 2015) and Snyder (June 16-23, 2015) had already contracted Legionnaires. And it’s
not like MDHHS was doing nothing in the meantime. There were dozens of meetings and
communications among MDHHS, GCHD, and the CDC (Addendum A); at MDHHS’s behest,
detailed notices and instructions about Legionnaires were distributed to the entire McLaren
healthcare network plus two other Flint-area hospitals on February 13, 2015 (Exs D, DC, DB,
DD(2); VI Kilgore 99), and June 1, 2015 (Exs LL, I; XXII Warden 83); and the CDC cautioned
about taking a “measured response” to the outbreak. (Exs 76, 84, QQQQ.)
The record details massive and understandable confusion among all concerned about the
source of Legionnaires. (Addendum A.) The full report that MDHHS staff issued to Director Lyon
and others on January 11, 2016—an entire year after the prosecutor says Director Lyon should
have given public notice—shows that nearly a quarter of the Legionnaires cases in the first wave
had no exposure to a Flint hospital in the two weeks before the onset and did not live on Flint
water. (Ex 9.) It’s easy to second-guess the MDHHS staff’s work on Legionnaires with the benefit
of 20/20 hindsight. It was not easy to unravel the complex and confounding situation as it happened
(XX Edwards 93), and MDHHS was treating Legionnaires Disease as “an urgent problem.” (XIX
Band 121.) Nor was it Director Lyon’s personal responsibility to decide when to give “public
notice”; this is often done by staff without his input or approval. (II Zervos 42-43.)
5
As for FACHEP, it presented its $12 million proposal and budget for Phase II to MDHHS
(but not Director Lyon) on April 29, 2016. (Ex TT.) Six days later, on May 5, 2016, FACHEP was
listed as an MDHHS top-3 funding request in an internal report. (Ex SSSS.) Director Lyon had his
first meeting with FACHEP on May 16, 2016. There, Dr. Kilgore became profane and was banging
on the table, yelling at Director Lyon about the project’s urgency. (IX McElmurry 57-58; XXI
Hanley 51-52.) Drs. Zervos and McElmurry gave inconsistent testimony as to whether Director
Lyon gave a flippant response to this inappropriate outburst; Hanley did not hear such a response
and would “absolutely” remember if it was made. (VIII McElmurry 55; I Zervos 142; XXI Hanley
50-54, 82.) Regardless, two days later, on May 18, 2016, MDHHS forwarded FACHEP’s final
request for $9 million to the State Budget Office. (XXI Hanley 54; Ex 48.) Ten days later, on May
28, 2016, MDHHS followed up with the Budget Office to inquire about the funding; the email said
FACHEP is ready to start research and “we are running out of time.” The Department is “just
trying to be sure we can flip the switch on this as soon as possible,” said Hanley. (Ex RRRR.)
The final understanding was a $4.1 million FACHEP contract, with $3.1 million allocated
the first year, $1 million for the second. (IX McElmurry 79.) In nearly record time, the Legislature
approved the first-year $3.1 million (Ex HH at 1), and by June 23, 2016, the contract was entered
in MDHHS’ eGrAMS system (XXI Hanley 28; Ex NNNN), only one month and a day after Direc-
tor Lyon’s first meeting with FACHEP. But FACHEP took until July 23rd, an entire month later,
to finalize its obligations in the eGrAMS system. (XXI Hanley 29.) And FACHEP did not take
any water samples until September 2016, two months later (XII McElmurry 108), even though the
contract had an effective date of June 1, 2016, and Dr. McElmurry testified that collecting water
samples is an easy undertaking that could be done in a day and costs maybe $1000 to $2000. (XII
McElmurry 12-13; XII McElmurry 112.) Dr. McElmurry could not point to even one specific thing
Director Lyon did or did not do to cause delay. (XII McElmurry 107, 109-131; VI Kilgore 90-92.)
6
The Prosecutor’s “Facts”
As discussed in more detail below—in connection with the elements and in Addenda C &
D—the prosecutor continues making allegations unrelated to the charges or the record. The
prosecutor begins his brief with the switch from DWSD water to City of Flint water “despite
warnings that Flint’s water treatment system was not prepared to handle the switch.” (Pros Br 1-
2.) Director Lyon had nothing to do with the switch; he was not even in a position to do something
had he known about it. The prosecutor then continues with the serious concerns about Flint’s
drinking water, including discoloration, bad odor, skin rashes, fecal coliform, Trihalomethanes,
and the like. (Id. at 2.) Again, none of this has anything to do with Director Lyon, who knew
nothing about it contemporaneously. The prosecutor then jumps ahead to October 2015, when the
State ordered Flint to switch the water back because of “elevated blood levels.” (Id.) But Director
Lyon is not being charged with any misconduct or nonfeasance with respect to lead.
The prosecutor next points to the increase of Legionnaires beginning in June 2014 and
continuing into December 2014. (Id. at 2-3.) This, of course was all before Director Lyon had been
given any notice of the Legionnaires issue and could not be something Director Lyon influenced
in any way.
The prosecutor then jumps backward in time to events at McLaren Hospital in September
and October 2014 and early concerns that Legionnaires might be connected to the water switch.
(Id. at 3.) This still this nothing to do with Director Lyon, who first learned of the issue on January
28, 2015. The prosecutor then jumps forward again to May 2015, when, after four months of almost
no Legionnaires cases, MDHHS staff believed the outbreak to be over, when—known to GCHD
—a second outbreak was brewing. (Id. at 4.) There is no evidence suggesting Director Lyon knew
any of this, nor is there evidence Director Lyon’s top staff were asleep at the switch. Indeed, the
evidence shows the exact opposite. (Addendum A.)
7
When the prosecutor turns to the purportedly “relevant facts,” he appropriately starts with
the January 28, 2015 meeting. (Pros Br 4-5.) But the prosecutor’s next key date is the Muchmore
meeting on July 22, 2015 (id. at 5)—well after Messrs. Skidmore and Snyder had already
contracted Legionnaires. There is no evidence that Director Lyon’s expert epidemiologists and
infectious-disease specialists elevated Legionnaires to the Director’s attention in the interim. The
prosecutor then jumps to September 2015, when Dr. Miller truthfully indicated that 73% of the
2015 Legionnaire cases “involved individuals that did not live on Flint water,” (id. at 5), contrary
to the prosecutor’s theory that the switch to Flint water caused all the Legionnaires. The prosecutor
then criticizes Director Lyon for immediately relaying this information to the Governor’s cabinet,
as though informing the Governor’s office was somehow a bad thing. (Id. at 5.)
The prosecutor next skips ahead once again, to January 11, 2016, when Director Lyon
finally received the comprehensive—though still inconclusive—report about the 2015
Legionnaires outbreak and says that Director Lyon did not suggest notifying the public, even
though the Director did exactly that, only two days after receiving the report. (Id. at 5-6.) “By that
time,” intones the prosecutor, “the outbreak had claimed at least nine lives” (though he means
outbreak-associated deaths, needing further investigation). (Id. at 6.) Yet the prosecutor fails to
connect the dots and show how a single death is related in any way to Director Lyon’s actions.
So the substance of the prosecutor’s case is this: Director Lyon first received notice of the
Legionnaires issue on January 28, 2015; Director Lyon’s most experienced staff members handled
the problem while he managed and merged the 14,000-person DCH and DHS, but staff struggled
to identify the issue’s cause; the staff brought Director Lyon back to the issue in the latter half of
2015; and as soon as Director Lyon saw a full report, he gave it to the Governor and the public.
Therefore, says the prosecutor, Director Lyon caused the deaths of Messrs. Skidmore and Snyder,
who contracted Legionnaires in May and June 2015, respectively. This makes no sense.
8
STANDARD OF REVIEW
A district court may bind over a defendant for a felony charge only if the prosecutor can
produce evidence that satisfies the “probable cause” standard, i.e., “by a reasonable ground of
suspicion, (it is) supported by circumstances sufficiently strong to warrant a cautious person in the
belief that the accused is guilty of the offense charged.” People v Hudson, 241 Mich App 268,
278-79; 615 NW2d 784 (2000) (quotation omitted) (reversing district court’s bind over decision).
As the prosecutor concedes (Pros Br 6), a district court is obligated to “find that there is ‘evidence
regarding each element of the crime charged or evidence from which the elements may be
inferred.’” Id. at 278 (quoting People v Selwa, 214 Mich App 451, 457; 543 NW2d 321 (1995)).
Accord, e.g., People v Mason, 247 Mich App 64, 71; 634 NW2d 382 (2001) (reiterating “each
element” standard and affirming circuit court’s decision to quash district court order binding over
defendant charged with larceny by conversion); People v Anderson, 501 Mich 175, 181; 912
NW2d 503 (2018) (affirming “each element” standard and affirming district court’s dismissal of
complaint following preliminary examination).
For example, in Hudson, a nurse who worked at a long-term care facility was charged with
second-degree vulnerable adult abuse arising from her release of an elderly resident who later fell
and fractured her hip. Although the district court bound the nurse over for trial and the circuit court
declined to quash, the Court of Appeals reversed because there was insufficient evidence that the
nurse’s release of the resident was reckless or that the release was the “but for” cause of the
resident’s fall. Id. at 280-87.
Of course, the Court may make inferences from the evidence when determining probable
cause, and those inferences may be drawn from both direct and circumstantial evidence. People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). But those inferences must be reasonable.
Id. And the Court must “consider all the evidence presented, including the credibility of witnesses’
9
testimony.” Anderson, 501 Mich at 178. So while the prosecutor does not have to prove “water is
wet,” he does have to produce credible evidence for each element of the offenses and is not entitled
to all inferences, only reasonable ones.
Because the prosecutor appears to be trying to hold Director Lyon responsible for the
misconduct of the entire MDHHS Department, it is important to emphasize that there is no criminal
vicarious liability under Michigan common law. People v Jackson, 176 Mich App 620, 626; 440
NW2d 39 (1989); People v Wilcox, 83 Mich App 654, 659; 269 NW2d 256 (1978) (“[c]riminal
liability does not arise vicariously unless the Legislature so provides"). None of the statutes
charged here provide for vicarious criminal liability. So, Director Lyon cannot be held criminally
responsible for work that was or was not done by his staff. Period.
ARGUMENT
I. The prosecutor cannot establish each elements of a homicide charge (Counts I & II).
The elements of involuntary manslaughter are found in M Crim JI 16.13 Involuntary
Manslaughter—Failure to Perform Legal Duty. They are:
(1) Legal duty.
(2) Defendant knew of the facts that gave rise to the duty.
(3) Defendant willfully neglected or refused to perform that duty, and that failure to
perform was grossly negligent to human life.
(4) Death was “directly caused” by Defendant’s failure.
The prosecutor fails to satisfy any of these four elements. But as noted in the Introduction, the lack
of causation (element four), is particularly glaring. Accordingly, the defense will begin there.
A. The prosecutor cannot prove causation.
As explained in Director Lyon’s pre-hearing brief, an involuntary manslaughter charge
requires both factual and proximate causation. People v Tims, 449 Mich 83, 94; 534 NW2d 675
(1995). The prosecutor concedes this is his burden (Pros Br 19), but he can prove neither.
10
1. Factual causation
“Actual cause” or “cause in fact,” requires a defendant’s actions to be more than a mere
condition to an outcome, but to “positively contribute to” that outcome. People v Zak, 184 Mich
App 1, 11; 457 NW2d 59 (1990). For example, selling a murder weapon to a murder’s perpetrator
is a “necessary condition” to the murder, the sale is not “the cause” of the victim’s death. Id.
(emphasis added). Rather it is the perpetrator “shooting the victim” which causes his death. Id.
Here, there is no evidence that Director Lyon was “the cause” of Mr. Skidmore’s or Mr.
Snyder’s death. If either man even died of Legionnaires, Director Lyon’s alleged inactions hardly
constituted “necessary conditions” or positively contributed to their deaths.
As to the issue of whether either Mr. Snyder or Mr. Skidmore actually died of Legionnaires,
as opposed to other causes, Director Lyon’s position is detailed in the motion to strike Dr. Joel
Kahn’s testimony. Both Mr. Skidmore’s (Ex 62) and Mr. Snyder’s (Ex 75) Death Certificates said
nothing about Legionnaires as the cause of death, creating a legal presumption that it was not such
a cause. MCL 333.2886, 333.2871. And there is insufficient evidence to rebut the presumption
that Mr. Skidmore and Mr. Snyder did not die from Legionnaires. Both suffered from many other
ailments
But this Court need not even rule on the cause of death to dismiss the charges because there
is insufficient evidence of factual causation for two additional reasons: (1) there was substantial
notification of Legionnaires; and, (2) there is zero evidence Messrs. Skidmore or Snyder or their
doctors would have done anything different had Director Lyon made a public announcement.
a. There was ample notice.
First, there was ample disclosure about the outbreak to the community, including the
medical community—which was the most important community to be advised under the
circumstances. (XXIII Reilly 71, 73; XIX Band 41-44.)
11
• MDHHS posted “weekly disease reports” on its website in real time that included
county-by-county disease reports—including Legionnaires. (I Becker 113.)
• GCHD posted a fact sheet on its website and used it in a broadcast email, likely in
2014 or 2015, and also posted communicable disease reports in real time. (XVII
Henry 54-58; Ex CCCC, BBBB.)
• The Governor’s office was aware of the situation; MDEQ’s Wurfel reported to
Murray, in the Governor’s Office, on January 30, 2015 that there had been “42 case
of LD in Genesee County since last May.” (Ex N.) And on March 13, 2015, MDEQ
twice gave a full report to many Governor’s office staff about a “significant uptick”
in confirmed Legionella illnesses. (Exs 28, F; V Hollins 137-138.)
• City of Flint officials were made also aware of the outbreak by GCHD, at least by
March 10, 2015. (Ex 28.)
• GCHD—at MDHHS’ behest—sent Legionnaires health alerts and clinical guidance
on February 13, 2015, and June 1, 2015, to the entire McLaren, Hurley, and Gene-
sys hospital systems (Ex D, DC, DB, DD(2)), forwarded to at least 700 providers.
• Hamilton Community Health Network received the same notices and forwarded
them to all HCHN providers and nurses too. (XXII Warden 22, 76, 78-79, 82-84.)
There was a third notice sent by GCHD on June 29, 2015.
• The EPA was aware of the increase in cases by March 2015. (Ex R.)
• The CDC was aware of the outbreak early on, and there are numerous CDC
employees embedded in MDHHS. The Timeline in Addendum A shows the CDC’s
consistent involvement throughout the spring of 2015.
• The report of the June 2014-March 2015 outbreak was sent to the CDC, the GCHD,
and to the hospitals on June 4, 2015. (Exs 69, FFFF, PP.)
Given this widespread notice, it is not clear how Director Lyon’s failure to notify in early
2015 “caused” anything with respect to Messrs. Skidmore and Snyder. The prosecutor offers no
explanation. The Prosecutor faults Director Lyon for: (1) not issuing a warning until January 13,
2016 (Pros Br 20); (2) not eliminating the source of the disease (id.); and (3) not switching Flint’s
water back to the DWSD (id.). The prosecutor fails to explain (1) how an earlier warning would
have made a difference in light of the other notices, catalogued above, (2) how an unknown source
could be eliminated, or (3) how Director Lyon could order a switch when he had no power to do
so, even had he been so advised (and he was not). Then the prosecutor simply declares victory:
“But for Defendant’s negligent omissions, neither Mr. Snyder nor Mr. Skidmore would have
contracted Legionnaires’ Disease or died as a result.” (Id.) Such ipse dixit hardly proves causation.
12
b. Notice from Director Lyon would not have changed things.
Both Mr. Skidmore and Mr. Snyder contracted Legionnaires at McLaren, and McLaren’s
Borowski testified that all medical providers in McLaren’s network were notified about the
Legionnaires outbreak. (XI Borowski 85-87.) As a result, there is no evidence that any announce-
ment from Director Lyon would have changed anything with respect to Messrs. Skidmore and
Snyder’s medical doctors and assistants.
For example, Mr. Skidmore’s past practice was to always use McLaren hospital, and his
doctor was affiliated with that hospital. (XIV Skidmore 7.) Mr. Skidmore’s medical records show
that he regularly went to McLaren (Exs 66, AAA, BBB), and he continued to go to McLaren after
contracting Legionnaires there. (XIV Skidmore 20.)
Mr. Snyder also used McLaren Hospital regularly. (X Tribble 20; Exs 73, CCC.) Mr.
Snyder’s oncologist even sent him by ambulance to see a specific orthopedic doctor at McLaren
on June 16, 2015, the visit where he is said to have contracted Legionnaires. (X Tribble 22-23,
25.) The oncologist is part of the McLaren system and would have been notified about the outbreak
on February 13, 2015, and June 1, 2015. In sum, there is no evidence that Director Lyon caused
Messrs. Skidmore or Snyder to contract Legionnaires’ Disease by something he did or did not do.
As the Timeline in Addendum A demonstrates, information about Legionnaires was
sketchy in the early part of 2015, but what was known was disseminated widely to the parties who
needed to know it: medical providers, including the entire McLaren Hospital network. Had there
been a public announcement about a Legionnaires outbreak, there would have been no
recommendations, because the cause of the outbreak was undetermined as of May and June 2015.
An announcement certainly could have described the symptoms, so people would know to
go to the hospital. But as Dr. Miller said that at the time, she believed a non-traditional health
advisory to the public would not have been a good idea. (II Miller 96; III Miller 47-48, 19-121.)
13
More important, both Messrs. Skidmore and Snyder did go to the hospital—promptly—when they
were sick, necessarily breaking any causal connection. Mr. Snyder was not even experiencing any
of the classic symptoms of Legionnaires—no fever, no chills, no cough, no elevated white blood
count, “no symptoms” (X Tribble 27-28)—that an announcement would have addressed.
For their part, Drs. Reilly and Band testified that it would have been reckless to make
announcements about the association with the hospitals at that point given what little was known,
because it would deter patients from going to the hospital when needed and would result in
unnecessary and dangerous hospital transfers. (XXIII Reilly 65-68; XIX Band 36-37.) Both
doctors opined that a generalized announcement about the outbreak, without recommendations,
could cause panic and worry in an already stressed community and would tax the healthcare
system, taking away resources from those truly ill. (XXIII Reilly 65-68; XIX Band 143-144.)
The prosecutor’s brief asserts that after receiving boil water advisories, “citizens of Flint
took effective steps to minimize exposure to Flint river water.” (Pros Br 22.) But the prosecutor
does not explain how a notice to the public by Director Lyon would have positively improved on
that behavior.
The prosecutor also says Director Lyon should have “promptly mandated a switch back to
safe drinking water.” (Pros Br 21.) Again, the prosecutor misses the point. Any switch was a City
of Flint/Emergency Manager/MDEQ experts decision, not an MDHHS decision, and certainly not
Director Lyon’s decision. (Ex. P.) The prosecutor says that had Director Lyon “issued public notice
about the Legionnaires’ Disease a year earlier, citizens in Genesee County, including Messrs.
Snyder and Skidmore, could have taken precautions and protected themselves from harm.” (Id.)
How? No one knew where the Legionnaires was coming from, and Messrs. Skidmore and Snyder’s
own doctors appropriately treated them at McLaren. And Mr. Skidmore was already drinking
bottled water exclusively as of June 4, 2015. (Ex BBB at 159.)
14
The prosecutor claims that had Director Lyon issued an outbreak notice in 2014, “hospital
operations going forward would have been different.” (Id.) Again, how? McLaren already knew
about the outbreak and was still formally notified on February 13, 2015. (Ex B). So the concerning
surge of Legionnaires cases in late 2014, and the notice to the entire McLaren medical community
in February 2015, was inadequate to effect hospital operations? No evidence supports that
supposition. Next, the prosecutor says that “Legionella can be eradicated with a simple dose of
antibiotics.” (Id.) But that is equally true whether the antibiotics result from public notice by Direc-
tor Lyon, or from notice to the entire McLaren medical system to be on the lookout for Legion-
naires, the very medical system where Messrs. Skidmore and Snyder were actually being treated.
The prosecutor takes one last shot. He notes that after the boil-water advisories went into
effect, the residents of Flint took precautions to protect themselves, presumably by boiling water.
(Id. at 22.) But what more would a Director Lyon announcement have done that the all-hands-on-
deck medical-personnel notices did not when Flint citizens had already changed their behavior?
No one knew where the Legionnaires was coming from, no one knew how to stop it, and Messrs.
Skidmore and Snyder contracted Legionnaires at McLaren despite all McLaren medical personnel
having been warned. To say Director Lyon should have switched the Flint water supply back to
DWSD ignores what the Director actually knew as well as the scope of his authority. And to sug-
gest that Director Lyon should be bound over on manslaughter charges because he relied on his
expert staff to investigate the problem before making a public announcement is pure sophistry.
At the end of the day, there is zero proof that there was anything Director Lyon did or did
not do that actually caused either Mr. Skidmore or Mr. Snyder to get sick from Legionella. The
prosecutor’s theory is akin to blaming Director Lyon the next time someone dies after a Michigan
hospital-acquired infection; when the entire medical community knows about that risk, Director
Lyon’s failure to give public notice is not a cause in fact. Charges I and II must be dismissed.
15
2. Proximate causation
“Proximate causation is a legal construct designed to prevent criminal liability from
attaching when the result of the defendant’s conduct is viewed as too remote or unnatural.” People
v Feezel, 486 Mich 184, 195; 783 NW2d 67 (2010). If an intervening cause supersedes a
defendant’s conduct “such that the causal link between the defendant’s conduct and the victim’s
injury was broke,” there is no proximate cause or criminal liability. Id. (quotation omitted). As M
Crim JI 16.15 puts it, death must be “the natural or necessary result of the defendant’s act.” Here,
it is clear that McLaren Hospital, at least, was an intervening cause of Skidmore and Snyder
contracting Legionnaires.
The only evidence regarding Messrs. Snyder and Skidmore’s contraction of the disease is
that both were at McLaren during their incubation period. In fact, McLaren is the only known
connection of either gentleman to Flint water. And unlike Director Lyon, McLaren actually owed
a common law duty to Messrs. Skidmore and Snyder, that of a premises owner to invitees. E.g.,
Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000), as amended
(Sept. 19, 2000).
Several months before Director Lyon had any knowledge of the outbreak, McLaren knew
that its water had unacceptable levels of Legionella, and that its patients were contracting
Legionnaires in unprecedent numbers. McLaren typically had only one or two cases of Legionella
per year but in June 2014, three out of the six Genesee County cases were associated with
McLaren; two of the five cases in July 2014 were associated with McLaren; four out of 10 in
August, seven out of eight in September, two out of five in October, two out of three in November
and two out of five in December 2014. (Ex 59.) Julie Borowski had never seen numbers like these
in any medical facility with which she had ever been associated. (XI Borowski 8, 10-13, 27, 30.)
16
By October 2014, McLaren had sampled locations throughout its facility for Legionella.
Some samples came back at counts of 23 and 24, and anything over 10 is a concern. (Ex GGGG.)
Water sampling by Environmental Testing & Consulting, Inc. (ETC) in December 2014 revealed
that the McLaren incoming water supply had no Legionella. ETC reasonably concluded that the
Legionella was an internal McLaren issue, not an issue with the City water supply. (Ex NN.) Ms.
Borowski started meeting with MDEQ experts and MDHHS to discuss “future testing and
communications” and “clinical guidance” on January 28, 2015. (XI Borowski 74-75.)
McLaren received the outbreak information and clinical guidance that the GCHD sent on
February 13, 2015, and on June 1 and June 29, 2015. (XI Borowski 57-60, 87; Ex D, LL, MM.)
McLaren disseminated these notices to over 700 providers in its network. In May 2015, two of the
three new Genesee County cases were associated with McLaren, and the number of cases—
including the number of McLaren-associated cases, continued to increase in the summer of 2015.
(XI Borowski 35.) All this even though the December 2014 and August 2015 testing showed that
McLaren’s incoming water-supply lines had no Legionella (Exs NN, OO), breaking any causal
link between Flint water and the Legionnaires outbreak at McLaren.
After consulting with a Legionella expert, Dr. Janet Stout, McLaren added new disinfection
systems beginning in late August 2015, and the Legionnaires cases associated with McLaren
stopped. (Ex 59; XI Borowski 33-35.) McLaren notified its employees of the outbreak in a news-
letter dated August 14, 2015. (Ex V.) Certainly, McLaren’s failure to notify its patients as they
were admitted was an intervening cause to any alleged failure of Director Lyon to notify the public.
So Director Lyon was neither the cause in fact of Messrs. Snyder and Skidmore contracting
Legionnaires nor was he the proximate cause—that was McLaren. And though the defense
explained this reality in great detail at the July 11th hearing, the prosecutor does not even address
it in his brief, implicitly conceding that Counts I and II must be dismissed on this basis, too.
17
B. The prosecutor cannot prove a legal duty.
The prosecutor’s brief alleges that the Director’s duty flows from MCL 333.2221. As noted
at the July 11th hearing, this statutory provision—which the prosecutor quotes in full on page 9 of
his brief—provides directives solely to the “department,” not the “Director.” Citing a civil case
regarding the meaning of the word “shall,” the prosecutor characterizes MCL 333.2221’s com-
mands as though Director Lyon was personally responsible for each. So Director Lyon apparently
has to personally collect and use vital and health statistics, investigate the cause of epidemics,
prevent sources of illness, etc. This Court would be the first in Michigan’s history to take such a
statute and make it the source of manslaughter liability for a public official. No government
employee could possibly satisfy it. If one Michigan citizen contracted an illness and a second
citizen later caught the same illness, Director Lyon would be criminally responsible under the
prosecutor’s theory. That is why—contrary to the prosecutor’s representation—MCL 333.2205(1)
vests the Department’s duties in the director “or an employee or agent” of the Department that the
Director designates. Director Lyon has designated many employees to fulfill these duties.
Unsurprisingly, no legal authority supports the prosecutor’s theory. The prosecutor has
cited MCL 333.2231, but § 2231 does not contain an enforceable duty; it merely requires officials
of the state to “furnish the department with information relating to public health which may be
requested by the department,” and it requires the department to “report periodically to the governor
and Legislature as to the activities carried on under this code.” MCL 333.2231(1), (2) (emphasis
added). The first requirement does not apply here, and the second is not specific enough to be
enforceable. Director Lyon does report periodically to the Governor and Legislature as to the
activities carried on by MDHHS. There is no duty to make a specific report about a specific subject
at a specific time. Incidentally, no case has ever held that MCL 333.2231 can be used as a predicate
for the legal duty required in an involuntary manslaughter prosecution, either.
18
The prosecutor has also made passing reference to the Critical Health Problems Reporting
Act. But that Act creates reports for the Director to use, not reports he must give. For diseases,
conditions, or procedures that the director determines constitute a critical health problem, see MCL
325.73, a report must be made by “(a)n attending physician or other person representing or
employed by a facility.” MCL 325.74. Such reports are supposed to be maintained by the
department, MCL 325.76, not promulgated, though they can be made available for essential health-
related research. Id., MCL 325.75(3).
The prosecutor similarly ignores the discretion inherent in all of these activities. As the
amicus curiae brief for the Association of State & Territorial Health Officials explains, there is no
legal duty to issue a public notice about an outbreak at a particular time or in a particular way. The
testimony has consistently established that such decisions are a matter of professional discretion,
and the only literature anyone pointed to on the topic was by Dr. Reilly, who talked about CDC
guidelines about risk communication. (XIX Band 34-35, 41, 45, 62; XXIII Reilly 22, 23, 35-38,
70-71, 75-76, 170.) Those guidelines simply stress various issues public health professionals might
consider when making a judgment call about issuing a public notice, issues that are particularly
important to consider in a case like this, where the healthcare community was on high alert and
there was no notice that could have been given to the public to protect people them from
contracting the disease. (XIII Reilly 23, 25-26, 70-71.)
The only other source of a duty that the prosecutor has mentioned (though his brief does
not) is MCL 333.2221(1), which requires only that the department “endeavor” to achieve certain
general goals through “organized programs.” There is no evidence the Director abandoned that
duty. Director Lyon relied on staff in the Population Health division of MDHHS—an “organized
program” established by regulations—to conduct the public health investigation, apprise him of
developments, and advise him about any recommended courses of action.
19
In fact, the most relevant legal authority in these circumstances places the legal duty on the
local county health department, not the director. MCL 333.2235(2) states that the director “shall”
consider the local health department “primary” in circumstances like these. That is why MDHHS
staff worked so closely with the GCHD. Dr. Miller underscored the local nature of the outbreak
by pointing out to Director Lyon that there had not been a similar increase in cases in surrounding
counties (II Miller 92), and GCHD appropriately assumed the lead (e.g., Exs 24, DA, L, E, 25, 28,
44, F, 80, AAAA, etc.). No one advised the Director that MDHHS should “take over” GCHD,
A separate problem for the prosecutor is that common-law manslaughter in Michigan has
only ever been based on common-law duties, such as parents and children or adults standing in
loco parentis with a child, like babysitters or teachers. See, e.g., People v Giddings, 169 Mich App
631; 426 NW2d 732 (1988) (parent/child); People v Thomas, 85 Mich App 618; 272 NW2d 157
(1978) (teacher/student). There appears to be no Michigan case where a duty was wholly imported
from a statute for purposes of a common-law manslaughter conviction.
This case should not, and cannot, be the first because doing so would be bad public policy
and would violate Director Lyon’s Due Process rights under ex post facto principles. People v
Doyle, 451 Mich 93, 100; 545 NW2d 627 (1996); United States v Lanier, 520 US 259, 266 (1997);
Bouie v City of Columbia, 378 US 347, 354 (1964). Had Director Lyon known he could be charged
with manslaughter for a Flint water switch made by the City and its Emergency Manager in
consultation with MDEQ experts—officials over whom Director Lyon has no responsibility or
control—he never would have taken the Director position in the first place. And had he known he
could be so charged when any Michigan citizen dies and there is an after-the-fact allegation that
one of MDHHS’ 14,000 employees could have done a better job, he would have been foolish to
even consider it. Any sensible person considering future public service in Michigan will certainly
take the prosecutor’s allegations into account.
20
The prosecution cites to People v Sails, No. 330192 (Mich Ct App, Apr 20, 2017), a failure-
to-perform-a legal-duty involuntary manslaughter case. Sails involved a substitute teacher who
taught a swim class without having a lifeguard certification and without properly supervising the
students in his care while they were in the pool. A student drowned. Sails is a hybrid duty case,
deriving some duties from the common-law teacher-student duty of care, and some duties from
regulations regarding the duty of care owed by a swim instructor to the students. The administrative
rules relied upon to create the statutory duties at issue in Sails were highly specific as to what the
individual teacher must do relative to each student in his care—the duty to have a lifeguard
certification, to be watching all students at all times, be able to provide immediate attention to any
student in distress—and not at all like the broad, general and aspirational statements of the mission
of the MDHHS found in MCL 333.2221 or other statutes.
What actually controls this case is the seminal (and widely cited) decision in People v
Beardsley, 150 Mich 206; 113 N2d 1128 (1908). As the Michigan Supreme Court held, the type
of relationship that will support the imposition of a legal duty sufficient to form the basis of a
manslaughter charge is a close, personal one, in which the defendant is directly responsible for the
care of a specific individual. Id. at 209-10 (requiring the legal relation of “protector, as husband to
wife, parent to child, master to seaman, etc.,” one who has “the custody and care of a human being,
helpless either from imprisonment, infancy, sickness, age imbecility, or other incapacity of mind
or body”). So a defendant may be held criminally liable only (1) based on a certain status
relationship to another, (2) based on the assumption of a contractual duty, (3) based on the
voluntary assumption of the care of another, and (4) where a statute imposes a duty to care for
another. Id. This is consistent with the prosecutor’s very best case on the subject, People v Albers,
258 Mich App 578, 582; 672 NW2d 336 (2003), which found a legal duty based on an assumed
contractual obligation, the defendant’s lease agreement. Id. at 585.
21
Here, of course, Director Lyon had no “status relationship” (parent-child, teacher-student,
etc.) with Mr. Skidmore or Mr. Snyder, he owed no contractual duty to either man, and he did not
voluntarily assume the care of either to the exclusion of others. Nor did the Director have an
employer-employee relationship with the gentlemen, as in the case on which the prosecutor relies
heavily, People v General Dynamics Land Systems, Inc, 175 Mich App 701, 703; 438 NW2d 359
(1989). As noted above, MCL 333.2221 does not create such a status relationship, and the
prosecutor has not cited a single case or other authority in support, because the law under Beardsley
runs the exact opposite way, even in the civil context. E.g., Hobrla v Glass, 143 Mich App 616,
636; 372 NW2d 630 (1985) (although governmental official violated a statute requiring suspension
of a driver’s license following a felonious-driving conviction, the official could not be liable for
someone hurt by that failure because “the statutory duty is one owed to the general public not to
any individual citizen”).
Lacking a showing of any personal legal duty that Director Lyon owed to Mr. Skidmore or
Mr. Snyder, the prosecutor’s manslaughter charges in Counts I and II necessarily fail.
C. The prosecutor cannot prove that Director Lyon knew of facts giving rise to
any hypothetical duty.
It is undisputed that Director Lyon was first made aware of the Legionnaires outbreak in
January 2015. But there is no evidence that anyone put the Director on notice—at any time before
the end of June 2015—that a second outbreak was possible or that he should make a public
announcement about the potential for a second outbreak. The record shows the exact opposite.
Here is the Legionnaire case count in Genesee County in early 2015: January (2), February
(0), March (1), April (0). There were three cases in May 2015—one of them was Skidmore—and
notice was promptly sent a second time to all Genesee County hospitals on June 1, 2015. Even if
these facts had been conveyed to Director Lyon contemporaneously (and they were not, until long
after Messrs. Skidmore and Snyder had gotten ill from their McLaren hospital stays), it would have
22
negated any hypothetical duty to warn of an ongoing Legionnaires outbreak. This is a third,
independent reason to dismiss Counts I and II.
D. The prosecutor cannot prove that Director Lyon willfully neglected or refused
to perform a duty in a manner that was grossly negligent to human life.
As M Crim JI 16.18 explains, gross negligence means more than carelessness. It means
willfully disregarding the results to others that might follow from an act or failure to act.
Accordingly, M Crim JI 16.18 requires proof that the defendant: (1) knew there was a danger to
another that required him to act; (2) could have avoided injuring another by using ordinary care;
and, (3) failed to use ordinary care when, to a reasonable person, it must have been apparent that
the result was likely to be serious injury. This is a foreseeability test, and it differs from the
instruction for ordinary negligence, M Crim JI 16.17, which leaves out all references to knowledge
of “another” person.
Here, the evidence shows that as of mid-May 2015, when Mr. Skidmore contracted Legion-
naires, and mid-June 2015, when Mr. Snyder is said to have contracted the disease, hundreds of
individuals from McLaren Hospital, staff at Hurley and Genesys hospitals, GCHD, MDEQ,
MDHHS, the Governor’s office, City of Flint officials, the EPA and the CDC were aware of a
Legionnaires outbreak. While Director Lyon was alerted on January 28, 2015, to the Legionnaires
problem that had arisen at the end of 2014, he appropriately relied on his staff to handle the prob-
lem and received no information about it until well after Messrs. Skidmore’s and Snyder’s
diagnoses. Nothing was communicated to Director Lyon about Legionnaires after January 2015
before the end of June 2015, the time by which both Snyder and Skidmore had become ill. The
chain of command at MDHHS would be that the Population Health staff would elevate the issue
and make recommendations for action if more needed to be done, and that did not happen here.
(I Becker 78.) And it was hardly gross negligence for Director Lyon to rely on his expert staff.
23
Moreover, the experts cannot agree whether, in early 2015, a second wave of Legionnaires
was foreseeable. (See, e.g., VI Kilgore 56; XIX Band 109.) It would be exceedingly odd to hold a
non-expert like Director Lyon—who necessarily relied heavily on the medical and epidemiological
experts in his department—to a foreseeability standard that even the experts do not satisfy.
The prosecutor does not take these deficiencies head on but dodges. He again deems it
“incredible” that Director Lyon “did not call for a switch back to DWSD” (Pros Br 12), ignoring
that Director Lyon had no knowledge a switch was necessary and lacked the power to direct one.
The prosecutor finds it equally “incredible” that Director Lyon did not at least order that the water
be immediately tested for Legionella. (Id.) But Legionella appears in almost all water (XIX Band
38, 86-87; VI Kilgore 128-129) and does not implicate impending illness (VIII McElmurry 129-
130, 132, 138-139; XX Edwards 39). Simply testing water willy-nilly would have been pointless
and unhelpful. (XIX Band 97-98.) This theory also ignores that no one on MDHHS’s staff (or
otherwise) ever suggested to Director Lyon that he should undertake testing (or suggested that the
staff was not already working with the GCHD to do just that), and that MDHHS staff had a plan
and was prepared to help GCHD with water testing when requested. (Ex I; III Miller 111.)
Lacking any proof of gross negligence, the prosecutor attempts to smear Director Lyon’s
character with disputed evidence about statements the Director made regarding lead, about Dr.
Reynolds’ personal opinion of Director Lyon’s attitude, and purportedly false statements during
the January 13, 2016 public announcement. (Pros Br 13-14.) The first two allegations are hotly
disputed; the last allegation is simply false. (Addendum D.) No matter. None of them shows that
Director Lyon willfully neglected or refused to undertake any particular duty that he owed. This
is simple mudslinging and, quite frankly, a desperate attempt to throw anything possible against
the wall to see if it sticks as an “inference.” The Court should not be taken in. The lack of any
evidence showing willful neglect is a fourth reason to dismiss Charges I and II.
24
II. The prosecutor cannot establish each element of misconduct in office (Count III).
A. The prosecutor has brought the wrong charge.
MCL 750.505 provision makes it a felony for an individual to “commit any indictable
offense at the common law,” but only “for the punishment of which no provision is expressly made
by any statute of this state.” In People v Waterstone, 296 Mich App 121, 144; 818 NW2d 432
(2012), the Michigan Court of Appeals held that MCL 750.505 cannot be invoked with respect to
misconduct “that entails willful neglect to perform a legal duty (nonfeasance),” because that
misconduct is expressly covered by another statute, MCL 750.478 (“every willful neglect to
perform (a public) duty . . . constitutes a misdemeanor punishable by imprisonment for not more
than 1 year or a fine of not more than $1,000.00”). In other words, misconduct in office allegations
involving nonfeasance are found under MCL 750.478, not as a felony under 750.505. As a result,
any charges seeking punishment for misconduct in office and alleging willful neglect to perform
a legal duty must be brought under MCL 750.478, not MCL 750.505. Id. at 144. As in Waterstone,
nonfeasance includes alleged concealment of communications that should have been disclosed. Id.
at 133 n3.
To the extent the prosecutor is still arguing that Director Lyon intentionally misled and
withheld information about the Legionnaires outbreak from the Governor, the Legislature and/or
the public—a theory he properly abandons in his brief based on all of the evidence—then this is
the exact same type of nonfeasance charged in Waterstone. That part of the allegation in Count III
should be dismissed under Waterstone.
The one theory the prosecutor does raise in his brief—that Director Lyon affirmatively
directed the FACHEP group to not engage in an analysis that would aid in determining the source
of the outbreak—is appropriately charged under MCL 750.505 but fails for lack of proof, as
outlined below.
25
B. The prosecutor cannot establish each element of a misconduct-in-office charge
(Count III).
The elements of the common-law offense of misconduct in office are: (1) a public officer;
(2) engaged in conduct in the exercise of the duties of the office or done under the color of the
office; (3) whose acts constitutes malfeasance or misfeasance; and, (4) which amount to corrupt
behavior. People v Carlin, 239 Mich App 49, 64; 607 NW2d 733 (1999) (citing Perkins & Boyce,
Criminal Law (3d ed), pp 540–545). In addition, “the existence of a duty owned to the public is
essential to be liable for misconduct in office, for otherwise the offending behavior becomes
merely the private misconduct of one who happens to be an official.” Id. at 65–66 (quoting 63C
Am Jur 2d, Public Officers and Employees, § 371, pp 811–812 (1997)). Count III requires proof
of: (1) a duty; (2) malfeasance/misfeasance in performance of the duty; and, (3) corrupt behavior.
1. The prosecutor again cannot prove a duty.
The only basis for a legal duty that the prosecutor cites with respect to Count III is again
MCL 333.2221. (Pros Br 24.) Under the statute, says the prosecutor, “the DHHS is duty bound to
investigate the cause of diseases and epidemics and the cause, prevention, and control of
environmental health hazards, nuisances, and sources of illnesses.” (Id.) The prosecutor suggests
that Director Lyon delegated this duty to FACHEP. (Id.) But the Timeline (Addendum A) shows
that the Director actually relied on his staff to do the public health investigation, not FACHEP;
FACHEP itself was simply contracted to do research through a grant. (VII McElmurry 66-69; XII
McElmurry 16-18). And as explained above, the statute does not impose a particular duty on
Director Lyon to do anything. There certainly is no legal duty to contract with an outside research
group like FACHEP, or to behave in a certain way. No statute, no case, no nothing. Lacking a legal
duty, the prosecution cannot “establish an essential element of the offense—that defendant ha(s)
committed criminal malfeasance or misfeasance.” Carlin, 239 Mich App at 68–69. Count III
therefore fails as a matter of law.
26
2. The prosecutor cannot prove malfeasance/misfeasance.
The prosecutor’s only remaining theory of malfeasance/misfeasance is Director Lyon’s
purported thwarting of FACHEP’s investigation. (Pros Br 24-29.) The prosecutor has abandoned
the theory that Director Lyon failed to timely notify the Governor’s office, and with good reason,
because the Governor’s office knew early and often about the Legionnaires outbreak:
• MDEQ’s Brad Wurfel references “42 cases of Legionnaires disease in Genesee County
since last May” in a January 30, 2015 email to David Murray in the Governor’s office.
(Ex N.)
• Harvey Hollins, the Governor’s Director of Urban Initiatives, learned about the
Legionella outbreak on March 13, 2015 from MDEQ’s Wurfel. (Ex 28.)
• Sarah Wurfel and Jarrod Agen, both on the Governor’s staff, received blind copies of
the same email. (V Hollins 137-138.)
• This email was also sent to the Governor’s David Murray. (Ex F.)
• No later than March 13, 2015, the following Governor’s office staff knew about the
outbreak: Hollins, Wurfel, Agen, and Murray.
In addition, Director Lyon himself discussed the increase in Legionella cases with the Governor’s
staff during a September 18, 2015 conference call. (Ex 23; V Hollins 113-118; XXII Brown 18.)
Regarding the prosecutor’s FACHEP theory—that Director Lyon thwarted an
investigation—there is zero supporting evidence. Although the evidence was summarized above
and in the Timeline in Addendum A, here is a more detailed treatment of the alleged “delay”:
• Shawn McElmurry was handpicked by Hollins to lead FACHEP in late January 2016.
There was not a standard bidding process. (VIII McElmurry 21-22; IX McElmurry 57.)
• MDHHS awarded FACHEP $250,000 for Phase I. (II Zervos 26-27; XXI Hanley 16.)
• April 29, 2016 – FACHEP presented a Phase II plan for about $12 million to MDHHS
staff. (XII McElmurry 23; Ex TT.) Hanley was surprised at the $12 million figure and
called it an “outlier.” (XXI Hanley 40.) It was far greater than any other group had
asked for relative to Flint and was two to three times more money than was being
allocated by MDHHS to bottled water and filters for Flint. (XXI Hanley 40.) Hanley
told FACHEP that it was highly unlikely the Legislature would authorize that level of
funding and it may want to consider trimming the budget. (XXI Hanley 41-42.)
27
• Shortly after the April 29, 2016 meeting, Drs. McElmurry and Kilgore had dinner with
Rich Baird of the Governor’s office. Dr. McElmurry said that Baird—not Director
Lyon—told them to get the budget down to $4.1 million. (IX McElmurry 82-83; XII
McElmurry 23-24; VI Kilgore 141.) The Legislature—not Director Lyon—controlled
the funding. (II Zervos 27.)
• May 5, 2016 – MDHHS was anticipating needing $5 million per year for two years for
FACHEP, $10 million total, and funding for FACHEP was highlighted as a department
top-three funding priority. (Ex SSSS at 10; Ex RRRR; XXI Hanley 21, 32.)
• May 16, 2016 – at a meeting with members of FACHEP, Director Lyon, and Hanley,
Dr. Kilgore became profane and was banging on the table, yelling at Lyon about the
urgency of getting their project underway. (IX McElmurry 57-58; XXI Hanley 50-51.)
Dr. Kilgore denied being profane. (VI Kilgore 123-124.) This was Director Lyon’s first
meeting with FACHEP.
• There is conflicting testimony about a sarcastic response that Director Lyon may or
may not have made at the meeting – he “can’t save everyone,” “everyone will die of
something.” (VI Kilgore 54; VII McElmurry 89; II Zervos 142.) He may have said
neither of those things. (XXI Hanley 51-54, 81-82.)
• May 18, 2016 – FACHEP’s final proposal for Phase II was submitted to MDHHS.
Hanley promptly forwarded FACHEP’s request for about $9 million to the State
Budget Office. (XXI Hanley, 54; Exhibit 48.)
• May 28, 2016 – Ten days later, Hanley followed up with an e-mail to the State Budget
Office, asking about the funding because FACHEP was anxious to get going on its
work and Director Lyon wanted them to get going on it as soon as possible. (Ex RRRR.)
• FACHEP was allocated $4.1 million by the Legislature. $3.1 million was to be paid out
on the contract between June 1, 2016 and Ex 31, 2017, and $1 million was to be paid
out in 2018. (IX McElmurry 82-83; Exhibit HH.)
• June 23, 2016 – FACHEP’s approved grant proposal was entered into the MDHHS
eGrAMS system. (XXI Hanley 28; Ex NNNN.) This was a mere month and a week
from the May 16th meeting, lightspeed for state contracting.
• July 23, 2016 – FACHEP waited an entire month to finalize its obligations under the
eGrAM process. (XXI Hanley 29.)
• Phase II of the project was heavily focused on testing water in homes for Legionella;
the home testing study had five components. MDHHS questioned FACHEP about one
of those five components – the shower filter study. Dr. Edwards wondered why
FACHEP was testing where the “Legionella were not,” as his group had studied Flint
homes in August 2015 and found no pathogenic Legionella, consistent with FACHEP
findings from January 2016 and subsequent findings from Dr. Edwards’ group
throughout 2016. (Exs 48, KKKK, Y; XX Edwards 71, 52-54.)
28
• August 5 and 12, 2016 – Dr. Wells, Director Lyon, and others asked FACHEP team
members about the value of the filter study; according to Dr. McElmurry, they seemed
skeptical about that portion of the study and said so during hallway discussion
following a FWICC meeting but ultimately, the filter study was fully funded as
requested by FACHEP. (VIII 47-48, 51, 77, 80-83; Ex 52.) MDHHS concerns were
legitimate, scientific questions. (VII McElmurry 28-29.) Director Lyon’s “skepticism”
about the filter study was that he asked Dr. McElmurry to explain the proposal to
Director Keith Creagh of MDEQ, and said that he had to balance the importance of the
study with upsetting the public. (VII McElmurry 94; Ex 52.)
• August 16, 2016 – FACHEP Phase II contract was executed effective June 1, 2016.
• September 2016 – FACHEP did not begin taking any water samples until September
2016 (XII McElmurry 108), even though the contract had an effective date of June 1,
2016, and Dr. McElmurry testified that it is collecting water samples is an easy
undertaking that could be done in a day and costs maybe $1000 to $2000 (XIII
McElmurry 12-13; XII McElmurry 112).
• McLaren Hospital refused to participate in FACHEP’s study. (VIII McElmurry 139.)
So the prosecutor has taken some disputed testimony about Director’s Lyon (1) possibly
making a flippant remark and (2) questioning the methodology of the filter study and FACHEP’s
gargantuan proposed budget, and turned it into a felony, even though Dr. Edwards had very similar
criticisms of FACHEP’s focus on the home study, at a time when the scientific data showed that
Legionella was not a problem in Flint homes, just the hospitals. (XX Edwards 71.)
More important, there is no evidence Director Lyon actually slowed down the contracting.
Pressed over many pages of cross-exam, Dr. McElmurry was unable to point to anything Director
Lyon said or did to delay the execution of the contract, and he acknowledged there were several
standard administrative issues that had to be worked through (a data use agreement, an IRB), as
well as a protective order obtained by the prosecutor and a legislative appropriation process, before
the contract could be executed. (VI Kilgore 90-92; VII McElmurry 63-65, 67-68, 74-75.)
On the other hand, there is evidence of the Legislature’s lightning-fast approval of the
appropriation. There is also evidence that a holdup was caused by: (1) FACHEP’s one-month delay
in entering its contract information into the eGrAMS system; (2) FACHEP’s refusal to take any
29
water sample until months after the appropriation had been made, none of which is attributable to
Director Lyon; and, (3) the improvident protective orders that the prosecutor obtained from the
Genesee County Circuit Court regarding McLaren on June 27, August 17, and August 24, 2016,
orders which the Court of Appeals rejected as based on “catchy phrases or naked assertions devoid
of factual support.” DHHS v Genesee Circuit Judge, 318 Mich App 395, 410; 899 NW2d 57
(2016). The lack of evidence dooms Count III.
3. The prosecutor cannot prove that Director Lyon acted corruptly.
Corruption means acts reflecting “depravity, perversion or taint.” People v Milton, 257
Mich App 467, 471; 668 NW2d 387 (2003) (quotation omitted). Corrupt intent can be shown
where there “is intentional or purposeful misbehavior or wrongful conduct pertaining to the
requirements and duties of office by an officer.” Id. It requires “a tainted or perverse use of the
powers and privileges” of office, “or a perversion of the trust placed in” an officer. Id.
There is no evidence that Director Lyon intentionally or purposefully misled the public or
anyone else about the Legionella outbreak. Given his long history of exemplary public service as
well as his substantial responsibilities overseeing a mammoth state agency, it is wrong to suggest
that Director Lyon engaged in a tainted or perverse use of his office’s powers and privileges.
At the July 11th hearing, the prosecutor said that Director Lyon lied, misled and tried to
cover up the Legionnaires outbreaks. But the evidence is to the contrary: Director Lyon directed
that the epidemiological investigation be done as a priority. (Ex 28.) As a result, MDHHS staff
caused the entire Genesee County medical community to be specifically notified of the outbreaks
on multiple occasions (once in February 2015, twice in June 2015), notified the CDC, and posted
weekly information about cases on its website. Director Lyon himself told the Governor’s office
staff about the outbreak in September 2015 and shared the stage with the Governor at the January
2016 press conference. This is the opposite of a cover up.
30
The prosecutor also sees coverup in an email from Colonel Kriste Etue to Baird on
November 25, 2015, where Baird says the Governor wants MDEQ’s Dan Wyant and Director
Lyon to work through the lead situation without having to declare an emergency. That declaration
was about lead, not Legionnaires, and Etue said it is common for the state to work with a local
community in a local crisis without declaring an emergency. (III Etue 155.) This Baird-Etue
exchange has nothing to do with Legionnaires, the actual charge, and the lead emergency
declaration issued within a month of the email. Most significant, the email states nothing about
Director Lyon’s perspective on an emergency declaration, only purportedly the Governor’s.
Likewise, the so-called “strong statement” email that the prosecutor continually uses as
purported misleading behavior by Director Lyon involves lead, not Legionnaires. (Ex 7.) And both
Dr. Edwards and Chief Deputy Becker testified that this email—where Director Lyon is asking
for a strong statement with a demonstration of proof in support of the MDHHS’s lead data—is
obviously just a request by Director Lyon to have his staff confirm whether the Department’s lead
data, previously provided to Director Lyon, “was accurate because it seemed we had a conflict
between ours and Dr. Hanna-Attisha’s.” (I Becker 30; XX Edwards 134-136, 147.)
The prosecutor suggests that Director Lyon had a feigned response to the comprehensive
outbreak report he received on January 11, 2016 (Ex 9), suggestive of a cover up. Not so. Director
Lyon has repeatedly stated that he first learned of the outbreak in January 2015, as did Becker and
the rest of MDHHS upper-level management. Becker said that he did not know the “numbers” and
likewise thought Director Lyon was seeing the “numbers” for the first time. Exhibit 9 is a
comprehensive 20-page outbreak report, not a 1-page Epi Graph, and the Court will see that it
contains a massive amount of data. The actual evidence is that January 11, 2016, was indeed when
Director Lyon saw this comprehensive report, which informed him for the very first time about
the number of outbreak-associated deaths, not just the number of cases, as well as other detailed
31
information about potential sources of exposure and the “outlier” cases. Director Lyon’s response
to seeing these details, according to Becker, was that the Governor and the public needed to know
right away, a wholly appropriate response acted upon immediately. (I Becker 52.)
The prosecutor has also suggested that Director Lyon lied under oath about when he
learned of Legionnaires. The testimony could not be clearer that the discussion to which the
prosecutor refers was about lead. Director Lyon testified under oath, and immediately following
his testimony told a reporter that he learned of Legionnaires in January 2015. (Ex 11, p 95.) There
is no proof of corruption or intentional or purposeful misbehavior by Director Lyon. Period.
III. The prosecutor cannot establish each element of willful neglect of duty (Count IV)
For the reasons set forth in Director Lyon’s motion to dismiss Count IV, there is no legal
or factual basis for the charge, which must be dismissed.
CONCLUSION
This is not a close case. The prosecutor’s legal theories underlying each of Counts I, II, and
III are contradicted by well-settled Michigan law and bereft of any evidentiary support. It is not
enough for the prosecutor to wave his hands in the air and cry that bad things happened to the
people of Flint, so someone must be held responsible. Notwithstanding the tragic events that
transpired, this is still a legal proceeding that requires proof of probable cause: it is the prosecutor’s
burden to show the specific legal duties that Director Lyon owed, how he breached those duties,
and how that misconduct actually caused the complained-of harm. Because the prosecution has
failed to show probable cause sufficient to support each element of Counts I, II and III, those
charges must be dismissed. And because Count IV must be separately dismissed pursuant to
Director Lyon’s motion, there is nothing left for trial. If Due Process means anything in Michigan,
it means that a public official cannot be bound over for criminal charges based on the wholly
inadequate record and legal theories the prosecutor advances here.
32
Respectfully Submitted,
Dated: July 19, 2018
BURSCH LAW PLLC
Attorneys for Defendant Lyon
_________________________
John J. Bursch (P57679)
9339 Cherry Valley Avenue, S.E., Unit 78
Caledonia, Michigan 49316-0004
(616) 450-4235
WILLEY & CHAMBERLAIN LLP
Attorneys for Defendant Lyon
______________________________
Larry C. Willey (P28870)
Charles E. Chamberlain, Jr. (P33536)
Britt M. Cobb (P69556)
300 Ottawa Avenue, N.W., Suite 810
Grand Rapids, Michigan 49503-2314
(616) 458-2212
STATE OF MICHIGAN
IN THE 67TH DISTRICT COURT, GENESEE COUNTY
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
v
NICOLAS LEONARD LYON,
Defendant.
____________________________________/
Case No. 17T-01355-FY
Hon. David J. Goggins
John J. Bursch (P57679)
BURSCH LAW PLLC
9339 Cherry Valley Avenue, S.E., Unit 78
Caledonia, Michigan 49316-0004
(616) 450-4235
jbursch@burschlaw.com
Larry C. Willey (P28870)
Charles E. Chamberlain, Jr. (P33536)
Britt M. Cobb (P69556)
WILLEY & CHAMBERLAIN LLP
300 Ottawa Avenue, N.W., Suite 810
Grand Rapids, Michigan 49503-2314
(616) 458-2212
Attorneys for Defendant
Todd F. Flood (P58555)
Special Assistant Attorney General
______________________________________________________________________________
DEFENDANT LYON’S POST-HEARING
MEMORANDUM ADDENDA
Addendum A: Timeline of Key Events
Addendum B: Timeline of Legionnaires Cases by Month
Addendum C: Facts, Not Words – July 11th Oral Argument
Addendum D: Facts, Not Words – Prosecution’s Brief
Addendum A
Timeline of Key Events
Addendum A: Timeline of Key Events1
• April 2014 – Flint municipal water switched from DWSD to Flint River. It is undisputed
that neither Director Lyon nor anyone else in public health was consulted about the
decision to switch. (VIII McElmurry 106.)
• June 2014 – Onset of 1st Legionnaires wave.
• January 28, 2015 – Lyon first learns of Legionella in meeting with Miller and Moran.
o Corinne Miller, the state epidemiologist and head of the Bureau of Epidemiology,
shows Lyon the epi curves. (Ex 8; II Miller 90.) Sue Moran, Deputy Director of the
Population Health and Community Services Administration, also attended the
meeting. Moran and Miller led the epidemiology group at MDHHS. (Ex A.)
o Miller showed Lyon the Epi Graph showing the rise in cases. (Ex 8).
o Miller showed (and possibly gave) Lyon a 1/27/15 email written by MDHHS’
Shannon Johnson (the Department’s subject-matter expert in Legionella, Infectious
Disease Epidemiologist) that was sent to Genesee County Health Department
(GCHD) staff with a detailed list of nine MDHHS requests for information and seven
things MDHHS could do to help GCHD in the Legionella investigation. (Ex B; III
Miller 51.)
o “We look forward to continued communication and collaboration with you,” Johnson
wrote to GCHD. (Ex B.)
o In her meeting with Lyon, Miller said it was obvious that MDHHS staff would be
pursuing the Legionella investigation. (III Miller 61-62.)
o Director Lyon asked to be kept informed. (II Miller 95.)
o Miller did not know if there had been any deaths. (II Miller 111.)
o Miller did not suggest that any type of public notification, traditional or otherwise,
was necessary. (III Miller 121.) And Miller did not explain to Lyon that the cases
could come back in the summertime but did point out the temporal relationship
between the switch in the water and rise in cases. (II Miller 99.)
o Most important, there was not enough information to go public yet. (III Miller 47-48.)
• January 28, 2015 – Lyon was copied on Miller’s email regarding her call with two Flint
hospitals and Michigan Department of Environmental Quality (MDEQ) staff. (Ex 3.)
o Miller noted that “we are working with the local health department to collect
additional case information.”
o The call was frustrating because the source of the Legionella infections “was all
speculation because we don’t have the case information that we need yet.”
o Moran to Miller: “Has the (Genesee County) Health Department agreed to let us
help?”
o Two days later, Lyon forwarded the 1/28/15 email to himself as a reminder.
o Lyon emailed Moran “soon after” the 1/28/15 meeting to see if things had been
worked out with GCHD. (II Miller 103.) There was no request back asking Lyon to
do anything.
1In all four Addenda, preliminary examination transcript citations are noted by Volume, Witness, Page
number. Exhibits are noted by number or letter.
2
o Chief Deputy Director Tim Becker also learned about the rise in cases that day and
was satisfied that the appropriate MDHHS staff have been engaged and were working
on the Legionella issue. There was no indication that things needed to be handled any
differently. (I Becker 81-82, 83-84.)
o As a result of this (Ex 3) and other communications on 1/28/15, Becker, Moran,
Miller and the Chief Medical Executive Matt Davis (Ex 1, 2, 3) as well as numerous
other relevant MDHHS staff members (Johnson and Jim Collins, to name two) all
knew of the outbreak by January 28, 2015.
o It is undisputed that no one recommended to Lyon that a public notice be issued,
either in January 2015 or at any time in 2015. (III Miller 121.) Moran, Miller, Davis
and the other medical and scientific staff were the ones tasked with reporting public
health concerns to upper management. (I Becker 7.)
• January 30, 2015 – MDHHS’ Jim Collins (Director of Communicable Disease).
forwarded Johnson’s 1/28/15 email to GCHD again and suggested GCHD issue a
Legionella notice to the medical community, enclosing a MIHAN example. (Ex 24, DA.)
Collins said that GCHD was in the best position to distribute the notice but said MDHHS
could assist if GCHD requested it.
o GCHD responded: “We do not want to jump to conclusions based upon very limited
and inconclusive evidence.”
o MDHHS staff express some “frustration” to GCHD email in a way that did not
represent the professional culture Lyon was building at MDHHS. (III Miller 93-94.)
• January 30, 2015 – GCHD’s Suzanne Cupal emails MDHHS’ Collins. She says GCHD
is taking the lead. “We do not want to jump to conclusions based upon very limited and
inconclusive evidence.” (Ex L.)
• January 30, 2015 – Governor’s staff also knew what Director Lyon knew. (Ex N.)
• February 4, 2015 – Johnson wrote a follow-up email to GCHD offering more MDHHS
help, including help with messaging to the public and media. Regarding messaging,
GCHD wanted to control that and responded: “Should we need MDCH PIO (Public
Information Officer) assistance, we will request it.” (Ex E.)
o Johnson asked for an estimated date that a HAN with the legionellosis guidance
would go out. (Ex E.)
• February 13, 2015 – At the suggestion of MDHHS, GCHD notified infection control
staff at all three area hospitals of the outbreak and provided clinical guidance for
clinicians. (Ex D, DC, DB, DD(2); VI Kilgore 99.)
o Hamilton Community Health Network also received the notice and forwarded it to all
HCHN providers and nurses too. (XXII Warden 76-79.)
o Julie Borowski at McLaren Hospital forwarded it to over 700 medical providers in its
system. (11 Borowski 87.)
o The notice warns that Genesee County has reported over 45 cases of legionellosis
since June 2014, the highest number of cases in the past five years.
o Cases are continuing to be identified.
o Investigations are ongoing to determine the cause.
3
o Asks the clinical community for assistance.
o Attaches clinical guidance, testing protocol, etc.
o Dr. Kilgore said notice to the medical community is the most efficient method of
getting the word out (VI Kilgore 106), and the expert witnesses, Drs. Band and
Reilly, testified that these notices were the most effective thing that could have been
done under the circumstances. (XXIII Reilly 71, 73; XIX Band 41-44.)
• February 20, 2015 – MDHHS and GCHD enhanced patient questionnaire is finalized for
use in epidemiologic investigation. (Ex C.) MDHHS initiated this.
o MDHHS coordinated with GCHD and the plan was that MDHHS staff would re-
interview all prior cases using the enhanced questionnaire and GCHD would
interview any new cases. (Exs C, CA, E.)
• March 9, 2015 – End of 1st Legionnaires wave. (Ex YA.)
• March 10, 2015 – GCHD’s Henry requested info from MDEQ and City of Flint officials
(but not from MDHHS). (Exs 25, 28, 44, F.)
o Says McLaren “identified and mitigated Legionella in their water system.”
• March 19, 2015 – After MDEQ responded, Henry wrote a reply noting that GCHD is
working with MDHHS and consulting with the CDC. (Ex XXX.)
o No conclusions regarding source of Legionella and GCHD still gathering information
• April 7, 2015 – All but seven of the 2014-15 patients have been contacted and re-
interviewed by MDHHS staff using the enhanced questionnaire. (Ex 80.)
• April 15, 2015 – GCHD’s Cupal responds to MDHHS email. (Ex 80.)
o McLaren tested, found Legionella in its water, hyperchlorinated, tested again and
found nothing; McLaren continues to monitor monthly and will create a remediation
plan; GCHD has identified Janet Stout, a Legionella remediation expert for building
water systems, Joan Rose, a Legionella expert at Michigan State University, and an
EPA water systems’ expert to consult on building and water system issues.
• April 22, 2015 – GCHD is in contact with the CDC. The CDC recommends that GCHD
have a “measured response” to outbreak. (Exs 76, 84, QQQQ.)
• April 23, 2015 – GCHD acknowledges it does not have sufficient data for further action
at this time. (Exs 76, 84, QQQQ.) MDHHS provides GCHD help obtaining water data
from MDEQ. (Ex AAAA.)
• April 27, 2015 to April 29, 2015 – Numerous emails among MDHHS, GCHD, and CDC
where entities exchange and review information regarding epi curves, water-quality tests,
and the investigation. The CDC gives detailed instructions on how to collect
environmental samples (water samples). (Exs AAAA, 76, 84, QQQQ, ZZZZ.) MDHHS
is clearly engaged.
4
• April 30, 2015 -A conference call between CDC, GCHD and MDHHS occurs. (Ex
QQQQ, ZZZ, 84.)
• May 1, 2015 – Susan Bohm at MDHHS recommends to GCHD that another notification
to “all Genesee providers” be issued with clinical guidance.
o Bohm offers the assistance of the CDC-EIS officer embedded at MDHHS to assist
GCHD with water sampling. (Ex I.)
o Email exchange notes that Tim Bolen, Regional Epidemiologist for MDHHS, will be
attending meeting with hospitals in Flint on 5/7/15. (Ex I.)
• May 4 or 8, 2015 – First Legionnaires case since March 2015. (Ex YA, 21, 69.)
• May 13, 2015 – Mr. Skidmore is admitted to McLaren. (Ex BBB at 83.)
• May 15, 2015 – Email between MDHHS and CDC; nothing remarkable stands out from
the patient interviews except the initial cluster of cases at McLaren. (Ex EEEE; XVII
Henry 74.)
• May 19, 2015 – Mr. Skidmore is released from McLaren. (Ex BBB at 85.)
• June 1, 2015 –Mr. Skidmore is admitted to McLaren and diagnosed with Legionnaires.
GCHD again notifies the medical community as suggested by MDHHS on May 1, 2015
(Ex I) about Legionnaires and attaches updated clinical guidance, testing protocol, and
requisition form. (Ex LL.)
o Notice again reaches over 700 providers in the McLaren system as well as Hurley and
Genesys hospitals (XI Borowski 87); Hamilton Community Health Network again
received the notice and forwarded it to all HCHN providers and nurses, too. (XXII
Warden 83.)
• June 4, 2015 – MDHHS email attaching executive summary of outbreak and
investigation report is sent to GCHD, CDC and hospitals; MDHHS mistakenly believes
that the Legionnaires “outbreak is over” because the last reported case occurred in March
2015, but the Department urges “vigilant” awareness and surveillance. (Exs 69, FFFF,
PP.) The data is confounding, to say the least:
o 21 of 45 cases (47%) occurred in people whose residence received Flint water.
o 10 cases had no exposure to a Flint hospital in the 2 weeks prior to illness nor were
their homes on the Flint water system.
o “The lack of clinical Legionella isolates precludes our ability to link cases to an
environmental source.”
o “(E)pidemiologic data did not indicate a common community source.”
• June 5, 2015 – GCHD’s Henry responds to Collins email, copying CDC, that there have
been three more confirmed Legionella cases since the beginning of May 2015. (Ex 69.)
5
• June 8, 2015 – MDHHS’ Collins emails GCHD and CDC and continues to offer resource
and informational support; Collins notes that GCHD communications should be directed
to MDHHS staff rather than directly to the CDC and that the CDC agrees with this
approach; an epi aid is not warranted at this time. (Ex 77.)
• June 16, 2015 – Mr. Snyder is admitted to McLaren; an oncologist sends him to
McLaren by ambulance after initial visit. (Ex CCC at 64; X Tribble 22-23, 25.)
• June 23, 2015 – Mr. Snyder is discharged from McLaren. (Ex CCC at 64; X Tribble 10.)
• June 26, 2015 – Internal GCHD emails (Ex XXXX):
o Describes conference call with MDHHS.
o Six Legionella cases in June, four had “a direct association” with McLaren.
o McLaren needs to be more aggressive. McLaren should hire a better consultant
(MDHHS is tracking down the contact info) and share positive Legionella
environmental samples with MDHHS so that MDHHS can compare with clinical
samples.
• June 29, 2015 – GCHD again notifies the medical community about the outbreak with
guidance; again, more than 700 medical providers at McLaren and HCHN, as well as
other hospitals, receive this information a third time about Legionnaires. (Ex MM; XI
Borowski 87; XXII Warden 83.)
o Attaches clinical testing protocol, updated clinical guidance, and test requisition form.
o Outbreak identifier.
o Asks to take the sputum sample before administration of antibiotics.
• June 30, 2015 – Mr. Snyder is admitted to McLaren and then dies; the death certificate
lists cause of death as “Health-Care Associated Pneumonia.” (Ex 75.)
• July 2, 2015 – MDHHS lab informs GCHD of a successful test of a clinical sample (Mr.
Skidmore); GCHD requests that McLaren take a more aggressive approach. (Exs YYYY,
J.)
• July 8, 2015 – Internal GCHD emails note one Legionella case in May, seven in June,
three in July; 10 of the 11 cases are associated with McLaren; GCHD’s Henry to request
water samples from McLaren be provided to MDHHS to compare with clinical isolates.
(Ex YYYY.)
• July 22, 2015 – Lyon and Muchmore meet; Lyon is asked to “personally take a look at
this” relative to the lead problems; Lyon makes notes about a wide range of Flint water
problems and “legionnaires (hospital).” (Exs O, M, ZZ, 67, 68.)
o The prosecutor suggests that cracked iPhone screen means Lyon tried to break the
device to hide his notes. It is also true that when you drop a phone, the screen
sometimes cracks. It is undisputed that no data was actually compromised. If Lyon
was trying to deliberately conceal something, he did a terribly bad job of it.
6
• July 24, 2015-September 2015 – Much investigatory activity by MDEQ, MDHHS,
GCHD, and McLaren continues. (E.g., Exs H, OO, V, PPPP, IIII.) Testing at McLaren by
Special Pathogens Laboratory reveals pathogenic Legionella across the interior of the
hospital but none in the “incoming CW.” (Ex OO.)
• September 16, 2015 – Lyon, through his assistant, asks Moran for an update on Flint
water; Moran in turn asks Miller who provides an update via email. (Ex 23.)
o 31 new cases of Legionella from June to August 2015.
o 73% did not live on Flint water.
o Met with hospitals and GCHD to review steps; another meeting scheduled.
• September 18, 2015 – Lyon shares with Governor’s office the information from Miller’s
email from two days earlier (Ex 23) about the increase in Legionnaires’ Disease and
notes that 73% of patients do not live on Flint water. (Exs GC, GB; V Hollins 113-118;
XXII Brown 18.)
• September 28, 2015 – MDEQ/Lyon exchange emails regarding lead. (Ex 7.) By
September, lead had become an overwhelming issue according to Miller. (III Miller 62.)
• October 16, 2015 – Flint water source switched back to DWSD (Detroit Water).
• October 16, 2015 – Email exchange between Michigan Public Radio’s Carmody, Dr.
Marc Edwards at Virginia Tech, and GCHD. (Ex JJJJ.)
o Carmody asks about “opportunistic pathogens” in Flint water; Edwards responds,
“Our initial sampling did not find a worse problem in Flint than in other cities.”
o Edwards found high levels of Legionella pneumophila in two large buildings
(hospitals) “just before the switch.” Further testing “will take awhile.” Testing by
Edwards in August 2015 of homes and small buildings throughout Flint revealed no
pathogenic Legionella. (Exs NN, P; XX Edwards 37-38, 52-54, 69-70, 145.)
• October 29, 2015 – End of second Legionnaires wave. (Ex 21.)
• November 10, 2015 – MDHHS’s Eden Wells connects EPA and GCHD. (Ex HA.)
• November 27, 2015 – GCBOH’s Kay Doerr emails GCHD; concerned that information
reaches the public on the Legionella outbreak; “GCHD is best equipped” to make that
announcement. (Ex OA.)
• December 1, 2015 – GCHD emails the CDC. (Ex KA.)
o Since May 2015, 41 cases of Legionnaires, 18 of those cases were previously
hospitalized at McLaren.
o Still seeing increase in cases in Genesee County, but have not seen any previously-
hospitalized cases since August 2015, when McLaren did its remediation. (Ex KA.)
• December 13, 2015 – Mr. Skidmore dies; his death certificate lists the cause of death as
“end stage congestive heart failure.” (Ex 62.)
7
• January 11, 2016 – MDHHS Lasher email to Lyon and others attaches “full report” of
June 2014-March 2015 outbreak. (Ex 9.) Conclusions:
o Legionnaires data is a hodgepodge.
o Only 27/45 cases in the first wave had healthcare-facility exposure in the two weeks
before onset of the disease.
o Only 21/45 cases occurred in people whose residence received Flint water.
o Out of 18 cases with no healthcare exposure, only 8/18 (44%) were exposed to Flint
water at home.
o 10 of 45 cases (22%) had no exposure to a Flint hospital in the two weeks before
onset and did not live on Flint water!
• January 13, 2016 – Lyon press conference. (Ex 82.)
o Right before Lyon starts speaking, the Governor introduces the topic of the press
conference by noting that the medical community knew but not the public because the
investigation was ongoing. “(T)his is a preventive measure to communicate
information (so that) the citizens of Flint can . . . know that actions are being taken to
address the issue.” (18 Henry 30-31.)
o MDHHS cannot conclude that Legionnaires increase is related to the water switch.
o Continuing investigation plus increased diligence with monitoring with the hospital
systems.
• April 15, 2016 – GCHD’s Henry emails about an upcoming Genesee County Board
presentation where he says that GCHD may get questions about why a public notice was
not issued sooner, a question that he says is not reasonable. (Ex Q.)
o The Legionnaires cases were sporadic.
o Worked closely with hospitals and helped mitigate McLaren’s situation.
o All area hospital physicians were informed; increased surveillance and testing.
o 113 cases of Legionnaires in Wayne County in 2013; many diseases are cyclical.
o “There was no evidence that would have supported a public statement about a source
of exposure. If we had made a statement, then we’d probably be facing litigation,
also.” (Ex Q).
• April 25, 2016 – Lyon testifies before the joint select committee of the Legislature; Lyon
learned about Legionella in January 2015 but the problem did not rise to his level again
from staff until September 2015. (Ex 11 at 95). Lyon believed (correctly) that the
epidemiological staff was trying to solve the problem, i.e. determining the source and
having a solution for it, before elevating the Legionella issue to him again. (Ex 11 at 53-
54.) Lyon also says he was not aware of the serious health-related issues about lead until
Muchmore’s 7/22/15 email. (Ex 11 at 34-35.)
• April 29, 2016 – FACHEP presents its Phase II proposal and budget to MDHHS totaling
$12 million. (Ex TT.)
• May 5, 2016 – FACHEP is listed as an MDHHS top-3 funding request. (Ex SSSS.)
• May 16, 2016 – Director Lyon has his first meeting with FACHEP.
8
o Dr. Kilgore became profane and was banging on the table, yelling at Director Lyon
about the urgency of getting their project underway. (IX McElmurry 57-58; XXI
Hanley 51-52.)
o There is disputed evidence as to whether Director Lyon gave a flippant response to
this inappropriate outburst. (VIII McElmurry 55; II Zervos 135; XXI Hanley 82).
• May 18, 2016 – Regardless, MDHHS immediately forwarded FACHEP’s final request
for $9 million to the State Budget Office. (XXI Hanley 54; Ex 48.)
• May 28, 2016 – MDHHS follows up with the Budget Office only 10 days later to inquire
about funding; the email says FACHEP is ready to start research and “we are running out
of time.” The Department is “just trying to be sure we can flip the switch on this as soon
as possible.” (Ex RRRR.)
• June 23, 2016 – The final understanding was a $4.1 million FACHEP contract, with $3.1
million allocated the first year, $1 million for the second. (IX McElmurry 79.) In nearly
record time, the Legislature approved the $3.1 million for the first year (Ex HH at 1), and
by June 23, 2016, the contract was entered in MDHHS’ eGrAMS system. (XXI Hanley
28; Ex NNNN.)
• July 23, 2016 – FACHEP took until July 23rd, an entire month, to finalize its obligations
in the eGrAMS system. (XXI Hanley 29.)
• September 2016 – FACHEP did not take any water samples until September 2016 (XII
McElmurry 108), even though the contract had an effective date of June 1, 2016, the
appropriation for FACHEP had been made by June 23, 2016 and Dr. McElmurry testified
that collecting water samples is an easy undertaking that could be done in a day and costs
maybe $1000 to $2000. (XII McElmurry 12-13; XII McElmurry 112.)
o When pressed, Dr. McElmurry was not able to point to anything Director Lyon said
or did to cause any delay in FACHEP’s research. (XII McElmurry 107, 109-131; VI
Kilgore 90-92.)
o And one of the entities which refused to participate in FACHEP’s study was McLaren
Hospital. (VIII McElmurry 139.)
Postscript
• As Edwards testified, the Legionella outbreak in Flint was a complex and confounding
situation. (XX Edwards 93.)
• Cupal and Henry agree with that assessment. (Ex 76; XVII Henry 64.)
• Dr. Band testified that “both the GCHD and the MDHHS were treating Legionnaires’
Disease as an urgent problem. . . . They were giving it, they were doing a comprehensive
investigation.” (XIX Band 121.)
Addendum B
Timeline of Legionnaires Cases by Month
Addendum B: Number of Genesee County Legionnaires Cases by Month
(with McLaren Remedial Measures)
Year Month Event
2014 April Flint municipal water switched from DWSD to Flint River
June 5 cases
July 6 cases
August 4 cases
September 14 cases
October 5 cases
November 2 cases
December 4 cases
• Two of those cases were from McLaren even though water testing
at McLaren showed no Legionella coming in to the hospital from
the municipal water supply (Exs 59, NN; VIII McElmurry 28)
• “[S]upply water coming from the City of Flint is not contributing to
the legionella issues at McLaren and that any issues are likely
internal to the hospital.” Ex NN
2015 January 2 cases
February 0 cases
March 1 case
April 0 cases
May 3 cases
June 7 cases
July 13 cases
August 13 cases
• McLaren engages Janet Stout
• hyperchlorinates system on August 14, 2015 (Ex V)
• later in the month, installs first monochloramine unit. (Ex 59.)
September 9 cases
McLaren installs second and third monochloramine units. (Ex 59.)
October 1 case
• October 16, 2015 Flint municipal water supply switched back to
DWSD
November 0 cases
• McLaren installs fourth and fifth monochloramine units. (Ex 59.)
Addendum C
Facts, Not Words – July 11th Oral Argument
Addendum C: Facts, Not Words – July 11th Oral Argument
What the prosecutor said: What the record actually reflects:
Lyon’s February 14, 2017 letter to
McLaren says, in his own words, that
“he has the ability to do something.
He has the ability to shut the place
down.”
(Argument, p. 3.)1
• The letter was an Order Requiring McLaren Flint
Hospital to Correct Conditions. (Ex 71.)
• It says nothing about “shutting down” McLaren.
• It lists seven things McLaren must do, including
implementing all CDC recommendations from
October and November 2106, amend its Water
Management Plan to reflect the CDC
recommendations, preserve Legionella isolates
from water samples, cooperate with MDHHS
requests for information and essentially allow
oversight and water testing by MDHHS and CDC.
• There had been hospital-acquired Legionella cases
at McLaren in 2016, and the CDC along with
GCHD came to McLaren to investigate in August
2016. (Ex RR.) CDC made recommendations to
McLaren about water treatment, etc. (Ex RR.)
• On January 10, 2017, Director Lyon and Wells
sent a letter to the GCHD and McLaren stating
that MDHHS wanted to know if McLaren was
following the CDC recommendations and
additional information. It stated that MDHHS was
prepared to issue an imminent danger order if
McLaren did not address the issues. (Ex RR.)
• McLaren did not address the issues, so the letter
was sent. (Ex 71.)
• Ultimately a cooperative agreement was reached
in May 2017. (Ex SS.)
• The situation is not remotely comparable to the
confusing circumstances that existed on January
28, 2015.
The “hypothesis” that the water could
be contributing to the Legionella
problem was known since October
2014.
(Argument, p. 6.)
• Director Lyon did not know of the “temporal
relationship between the. . .switch in the source of
the water and the rise in the cases” until Miller
told him on January 28, 2015. (II Miller 99.)
• As of that time, the water switch was just one
hypothesis and the source of the outbreak was all
“speculation” because the case data was
incomplete (Ex 3.)
• A hypothesis is not a conclusion.
1To assist with the post-hearing briefing process, the defense had a court reporter create a rough, unofficial
transcript of the prosecutor’s remarks at the July 11, 2018 hearing. Page numbers reference that transcript, which is
accurate to the best of the court reporter’s ability but not certified.
2
What the prosecutor said: What the record actually reflects:
• Miller said that in January 2015, the MDHHS staff
had one “hypothesis” that the Legionella increase
might be related to the switch to the Flint River,
“but no one wanted to ignore that there might be
other things going on.” (II Miller 94.)
• Miller said there also “was a hospital (McLaren)
of concern” and that was another “hypothesis” in
January 2015. (II Miller 122; III Miller 120.)
• Hypotheses are meant to be confirmed and are
tested from the epidemiology and then can be
further tested by microbiology before a conclusion
can be reached. (XIX Band 30-33.)
Chlorine levels from PX 54 and BLL
from PX 55 were clear and Becker
said it would have been easy to “call
downstairs” and get the material
(Argument, pp. 7-8.)
• BLL data from (Ex 55) is from a paper Hanna-
Attisha wrote after the crisis was over. Contrary to
the prosecutor’s implication, Director Lyon had no
access to these exhibits in early 2015.
• Chlorine levels from Ex 54 were created by
McElmurry as part of his retrospective analysis.
(VII McElmurry 82-84, 87-88.)
• Becker said he could have “called” down to find
out how many people died of Legionella when he
learned of it in January 2015, but he did not. (I
Becker 17-18.)
Corinne Miller testified about the
foreseeability of what might happen;
“As the state epidemiologist did you
have an understanding of the
consequences of if nothing was done
as it relates to the summer months of
2015? If you are talking about
something was done with regard to
the water source, if that hypothesis
were true, if you will, then you would
expect to see more cases.”
(Argument, p. 8.)
• The very next question to Miller was whether this
concept was explained to Director Lyon and the
answer was: “The only thing I pointed out to the
Director was the temporal relationship between
the, the switch in the source of the water and the
rise in the cases.” (II Miller 99.)
• In fact, Miller did not recall telling Director Lyon
that it was possible an outbreak could occur again:
• “And, did you agree at that time you’d
indicated about the possibilities, it’s possible it
could happen again?
• It’s possible but I don’t recall saying that.
• Well what is the purpose of showing him –
• I may not to Director Lyon, I don’t recall
saying that.” (II Miller 98.)
“Judge, what happens when they
switch back on October 2nd of 2015,
back to the water of Detroit? What
happens? The outbreak is over.”
(Argument, p. 8.)
• The water source for Flint switched back to
Detroit water on October 16, 2015. (Ex P, p 24.)
• Cases started declining before then, after McLaren
installed monochloramine units in August 2015;
there was only one case in October 2015.
3
What the prosecutor said: What the record actually reflects:
• August 2015 – 13 cases
• McLaren engages Janet Stout;
hyperchlorinates system on August 14, 2015
(Ex V] and then later in the month, installs first
monochloramine unit. (Ex 59.)
• September 2015 – 9 cases
• McLaren installs second and third
monochloramine units. (Ex 59.)
• October 2015 – 1 case
• October 16, 2015 – Flint municipal water supply
switched back to DWSD.
• November 2015 – 0 cases
• McLaren installs fourth, fifth monochloramine
units. (Ex 59.)
“Why is it that it’s political. And she
(Miller) tells you because it deals
with the Flint Water Treatment Plant
and change of water. An emergency
manager was in place. That’s what
she tells you. That’s why it was
political. And now politics are
coming into play about health. And
we will get to the money aspect of it,
Judge, as it came here in this
courtroom to you.”
(Argument, p. 9.)
• There was no evidence that politics played a role
in Director Lyon’s reaction to learning of the
outbreak on January 28, 2015.
• Miller said there was always sensitivity about
communicating with the public in Flint. There had
been highly publicized difficulties with water
quality problems that had “political overtones.”
(III Miller 9, 16-17.) She said communication was
a complicated and sensitive matter that also
triggered the concern that any communication
would cause undue fear. (III Miller 126-127.)
• Sometime close to the meeting with Director Lyon
on January 28, Miller talked with Linda Dykema
about the “politics” of the Legionella issue. Miller
said she “observed” to Dykema that it may be a
difficult situation for the Governor’s office, given
the involvement of an Emergency Manager, if the
switch to the Flint River could actually be related
to Legionella outbreak. Miller characterized these
statements as her opinion and part of “normal
conversation.” (II Miller 101.)
• Miller did not garner this opinion/observation
from Director Lyon. (II Miller 101.)
• Although she works in a state agency and
“political concerns always filter through those
agencies,” she does not let politics intrude on
policy. (III Miller 115-116.)
4
What the prosecutor said: What the record actually reflects:
“[W]hen the health crisis comes to
his table, when it comes to him in
January, we have six people that have
died at least.”
(Argument, p. 9.)
• At the time of the meeting on January 28, 2015,
even Miller did not know if there had been any
deaths. (II Miller 111.)
• The first evidence of Director Lyon being told the
number of deaths is Ex 9, on January 11, 2016.
Regarding Tim Becker, he was asked
“Why is it you had to tell the
Governor once you-all discovered it?
Why didn’t you tell the public? And
we heard crickets”
(Argument, p. 10.)
• The actual testimony from Becker was:
• Yeah, as I said that was kind of the AHA
moment if you will that we’ve got something
here that needs to be raised. Needs to go up the
flight.
• What does that mean?
• This information needs to go to the
Governor’s office.
• What about the public?
• Yeah, the conversation on the public I’m sure
was going on throughout this period.” (I
Becker 52.)
• Two days after the “aha” moment on January 11,
2016, there was a press conference about
Legionella. (I Becker 117-118; Ex 82.)
Becker “starts sending up the chain
what do we know about this and
rumors of Legionnaires disease in
Flint” via emails on January 28, 2015
(Argument, p. 10.)
• Ex 1 and 2 were sent down to Population Health
staff, not “up the chain” to Director Lyon. (Exs 1,
2.)
Four people in the room during the
January 28, 2015 meeting, Director
Lyon, Moran, Miller and Mark
Miller.
(Argument, p. 11.)
• Corinne Miller said she “can’t picture him (Mark
Miller) in my mind’s eye” being at the meeting. (II
Miller 91.)
Director Lyon has “the information
the number two (Becker) doesn’t.”
(Argument, p. 11.)
• Director Lyon saw the Epi Graphs (Ex 8) and
Becker did not.
• But, Becker knows on January 28, 2015 there are
“rumors of legionnaires disease in Flint,” there are
“elevated levels of Legionella infection that
seems, anecdotally to coincide with the
changeover in Flint water,” that “Legionella can
be transmitted through inhalation of aerosolized
contaminated water” and that staff was working
with GCHD and MDEQ from Exhibits 1 and 2. He
also knows everything Director Lyon knows from
Exhibit 3.
5
What the prosecutor said: What the record actually reflects:
“Their expert says I would have
checked all of these sites for water
contamination of Legionella where
there was boil water alerts.”
(Argument, p. 14.)
• Boil water alerts, which were issued due to high
levels of ecoli and coliform (bacteria) only
occurred twice, in August and September 2014.
(Ex 51.)
• There were no boil water alerts after Director
Lyon became aware of the Legionella outbreak on
January 28, 2015. (VIII McElmurry 125.)
Director Lyon’s iPhone was
“destroyed” when law enforcement
seized it to copy it.
(Argument, p. 15).
• Agent Seipenko said the screen was shattered and
the iPhone was broken. (XIV Seipenko 27.)
• The phone was retrieved from the MDHHS
building in Lansing. (XIV Seipenko 27.)
• There is no evidence anywhere in this record that
this damage was intentional, as opposed to an
accidental dropping of an iPhone.
• The agent took it to a forensic cellphone analyst at
the Oakland County Sheriff’s department and the
contents of the phone were downloaded to a flash
drive. (XIV Seipenko 27.)
• Exhibit bears production date, “06-06-2016
SOM0072179,” [Ex 68], more than a year before
the agent event retrieved the phone.
• If Director Lyon were intentionally trying to
destroy data, he did a terrible bad job at doing so.
Reynolds described Lyon as “glib
and dismissive,” which prosecutor
characterized as “covering up, and
lying.”
(Argument, p. 17.)
• This meeting was in December 2015 or January
2016 and could not have contributed to Messrs.
Snyder or Skidmore getting sick. (IV Reynolds
31.)
• Reynolds never identified a single thing Director
Lyon said that was established to be untrue
• When Director Lyon said the outbreak was over, it
had been over for a few months.
Part of Legionella “coverup” was that
“they are trying to make this go away
without a declaration of emergency”
in January 2016, per an email
between Etue and Baird on
Thanksgiving 2015.
(Argument, p. 19.)
• The emergency declaration was about lead, not
Legionella. (Ex 36.)
• The emergency declaration was issued by the
Governor on January 5, 2016, within weeks of the
Thanksgiving email. (Ex 36.)
• Etue said not every local emergency becomes a
state emergency, it depends on whether resources
are needed from the State. (III Etue 143.) Etue said
that it is common for the state to work through a
local problem without declaring an emergency, yet
6
What the prosecutor said: What the record actually reflects:
still be providing assistance to the locals. (III Etue
155.)
• The email was from Baird saying that the
Governor wanted “us to work through this without
a disaster declaration of possible;” this was not
Director Lyon’s directive. (III Etue 143.)
Hanley asked for appropriation for
Legionella study in November 2015;
Why ask “for money [in late 2015] if
no one knows about the Legionella
outbreak?”
(Argument, p. 20.)
• This was at least five months after Messrs.
Skidmore and Snyder got sick and cannot be the
cause of either man contracting the disease.
• Becker asked her to start “pulling together”
funding requests for a variety of things related to
Flint water, including research on Legionella; this
was in December “around Christmas,” 2015 (XXI
Hanley 58-60.)
• Hanley did not talk to Director Lyon about this.
(XXI Hanley 59.)
• Director Lyon had already reported about
Legionella to the Governor’s staff, others on
September 18, 2015. (XXII Brown 5, 18; Exs 23,
G, GB, GC.) No one is suggesting they “don’t
know” about Legionella.
Becker said Director Lyon acted
surprised in January 2016 as though
he “learned about these numbers for
the very first time”; it was “a lie or a
feigned response.” It “surprised”
Becker to hear that Lyon learned
about Legionella in January 2015 and
he did not know how to “align that up
with the timing.”
(Argument, pp. 21-22.)
• Becker actually said, “we all kind of had a light
bulb moment.” (I Becker 39.)
• Becker was aware of the elevated levels of
Legionella infection no later than January 28,
2015, just like Director Lyon. (Exs 1, 2, 3.)
• Becker and Lyon were both copied on Ex 3 on
January 28, 2015, so Becker should have been
aware at that time that Lyon knew about
Legionella.
• The data Becker and Director Lyon saw on
January 11, 2016 was far more comprehensive
than what they saw and/or learned about on
January 28, 2015: it was a 12-page report with a
massive amount of data from what was then the
completed investigation of the June 2014-March
2015 outbreak. (Ex 9.)
Becker issued a notice “to the world”
about contamination at Wurtsmith
AFB.
(Argument, p. 24.)
• Becker notified 24 residences (not “the world”) of
a decades-old water contamination problem; he
made the notification based on staff
recommendations and lessons learned from Flint.
(I Becker 70, 55-58, 112-113.)
7
What the prosecutor said: What the record actually reflects:
• The notice was not a statewide or county-wide
notification, much less a notice “to the world,” as
it went to just 24 homes whose wells had tested
high for PFCs. (I Becker 74.)
Mr. Skidmore’s son said his father
“had no life left in him” after
contracting Legionella; “he didn’t
move.”
(Argument, p. 26.)
• After Mr. Skidmore’s discharge, his wife of 62
years died from pancreatic cancer. (XIV Skidmore
14, 15.)
• After her death, he lived alone at their marital
home in Mt. Morris until his death on December
13, 2015. (XIV Skidmore 24.)
• His sons checked in on him twice a day, once in
the morning and once in the evening. (XIV
Skidmore 24.)
• His son testified that Mr. Skidmore just never
seemed to get better after the hospital stay with
Legionnaires’ Disease; he would have some good
days but would always revert back to not feeling
good. (XIV Skidmore 24.)
Marc Edwards is the only one who
did not think the so-called “strong
statement” email [Ex 7] was
backwards.
(Argument, pp. 27-28.)
• Becker said the email was a request by Director
Lyon to have his staff tell him whether the
department’s lead “data was accurate because it
seemed we had a conflict between ours and Dr.
Hanna-Attisha’s.” (I Becker 31.)
• Edwards said this email was appropriate and is
nothing more than a sound request by Lyon to his
staff to reevaluate its data before issuing a
message to the public about human health. (XX
Edwards 147.)
• Miller said that this email was not worded in the
way an epidemiologist would phrase it. (III Miller
103.) It is backwards because it seemingly called
for a conclusion before collecting the information
but her reaction to it was that “knowing the
Director I thought that doesn’t make sense.” (III
Miller 103.)
Director Lyon testified falsely before
the joint legislative committee that he
first learned of Legionella in July
2015; statement to reporter following
the hearing was inconsistent with that
testimony. This was a theme
throughout argument but stated that
• Director Lyon testified truthfully on April 25,
2016 that he learned about Legionella in January
2015 but the problem did not rise to his level again
until September 2015. (Exs 11 p. 95, 3, 23.)
• Director Lyon testified that he believed the
epidemiological staff was trying to solve the
problem, i.e. determining the source and having a
8
What the prosecutor said: What the record actually reflects:
Director Lyon “lies to the legislature
(Rebuttal, p. 3.)
solution for it, before elevating the Legionella
issue to him again. (Ex 11 p. 53-54.)
• The discussion where Director Lyon says he was
not aware of the serious health related issues until
Muchmore’s 7/22/15 email was about lead not
Legionella. (Ex 11 p. 34-35.)
• Director Lyon likewise told a reporter after his
testimony that he learned of the outbreak in
January 2015. (Ex 13.)
“[H]e (Lyon) is the Doppler center.
Corinne Miller. He is the Doppler
center. He gives notice to those
people in advance that may be
harmed.”
(Argument, p. 30).
• There was no evidence or testimony that Director
Lyon is a “Doppler center” or that “he gives notice
to those people in advance that may be harmed.”
• It is undisputed that no one recommended to
Director Lyon that a public notice be issued, either
in January 2015 or at any time in 2015. (III Miller
121.)
“When the. . .Henry emails start
going back and forth the CDC is
somehow mysteriously off the
emails.”
(Rebuttal, p. 2.)
• CDC (Yoder, Langley, Fialkowski, Weinberg,
Tyndall-Snow) all were, in fact, on the email from
Henry dated June 5, 2015, advising of the three
new cases and stating that there may not be
consensus that the outbreak is over. (Ex 69.)
Henry “begging for water samples”
via his FOIA to the city.
(Rebuttal, p. 2.)
• Henry FOIA’d a map of water system and water
testing data about various bacteria in water as
monitored throughout system. (Ex 28.) The FOIA
was not about water samples and was directed to
MDEQ and the City of Flint not MDHHS and
certainly not to Director Lyon.
When McLaren did incoming water
supply testing in December 2014,
“it’s cold” and Legionella “grows
more in the warm months.”
(Rebuttal, p. 4.)
• Testing of water coming in to McLaren from the
city supply over a 15-day period in December
2014 revealed no Legionella; “Supply water
coming from the City of Flint is not contributing
to the Legionella issues at McLaren and that any
issues are likely internal to the hospital.” (Ex NN.)
• What’s important is that McLaren had two
Legionnaires’ cases in December 2014 even
though water testing at McLaren showed no
Legionella coming in to the hospital from the
municipal water supply. (Exs 59, NN; IX
McElmurry 28.)
9
What the prosecutor said: What the record actually reflects:
“Higher amounts of iron were found
within the water samples of McLaren
Hospital…from the water system
based on the higher amounts.”
(Rebuttal, p. 4.)
• There was no evidence that high iron counts
within McLaren were from the municipal water
system.
MDHHS never told McLaren that the
outbreak was “back on” and never
came to McLaren to help them
(Rebuttal, p. 5.)
• McLaren knew first hand that new cases were
happening, including that two out of the three
cases in May 2015 were associated with McLaren
and that they had many new cases throughout the
summer of 2015. (Ex 59.)
• McLaren was still seeing cases and they continued
to follow clinical guidance after the “outbreak is
over” email. (XI Borowski 67-69.)
• Tim Bolen, Regional Epidemiologist for MDHHS,
attending a meeting with hospitals in Flint on May
7, 2015. (Ex I.)
Addendum D
Facts, Not Words – Prosecution’s Brief
Addendum D: Facts, Not Words – Prosecution’s Brief
What the Prosecutor’s Brief says: What the record actually reflects:
“In an effort to save the City of Flint
millions of dollars, State-appointed
emergency managers, with the
approval of numerous state officials,”
switch the interim source of Flint
water from the DWSD to the Flint
River.
(Pros Br, pp 1-2).
• There is no evidence that Director Lyon was
involved in this decision in any way.
• Neither Director Lyon nor anyone else in public
health was consulted about the decision to switch.
(VIII McElmurry 106.)
• This decision to use the Flint River as an interim
water source was made by Flint officials after
engaging consultants and getting the approval of
the Michigan Department of Environmental
Quality (MDEQ). (VIII McElmurry 106.)
Water problems in Flint begin to
develop in 2014, including
discoloration, bad odors, fecal
coliform bacteria, and TTHMs,
resulting in boil water alerts.
(Pros Br, pp 2, 12).
• Director Lyon first became aware of Legionella on
January 28, 2015, and the other serious health
concerns about Flint water on July 22, 2015. (Ex
11, pp 34-35, 95; Exs 3, 23.)
• Information in the prosecutor’s brief about non-
Legionella water problems in Flint in 2014 are
irrelevant to this proceeding.
• Boil water alerts, which were issued due to high
levels of E. coli and coliform (bacteria) only
occurred twice, in August and September 2014.
(Ex 51.)
• There were no boil water alerts or coliform/E. coli
problems after Lyon became aware of the
Legionella outbreak on January 28, 2015. (VIII
McElmurry 125.)
• Until June 24, 2015, MDEQ was holding out the
water as being treated properly. (Exs 39, 28.) It
was not until the DelToral EPA memo of June 24,
2015 that it became publicly known that MDEQ
was not treating the water for corrosion and was
not in compliance with the federal Lead and
Copper Rule. (VIII McElmurry 119, XX Edwards
23-25, Ex R.)
• The DelToral memorandum that exposed the
MDEQ for not requiring corrosion control
treatment in Flint had a “major impact” on the
unfolding of Flint water issues more widely. (VIII
McElmurry 121-123.) But it had nothing to do
with Director Lyon
2
What the Prosecutor’s Brief says: What the record actually reflects:
“In September 2015, Michigan
Department of Health and Human
(DHHS) officials begin criticizing
research conducted by Dr. Mona
Hanna-Attisha” regarding blood lead
levels.
(Pros Br, p 2).
• There is no evidence that Director Lyon was
critical of Hanna-Attisha’s data; Lyon sent an
email (Ex 7) to his staff wanting to know whether
MDHHS lead “data was accurate because it
seemed we had a conflict between ours and Dr.
Hanna-Attisha’s.” (I Becker 31.)
• This email is all about lead, not Legionella.
• The MDHHS changed its position on the blood
lead level data within a few days and was able to
acknowledge that a different view of the data was
warranted. (XX Edwards 148.) This was a good
example of how a government agency should
work. (XX Edwards 92.)
The number of cases of Legionnaires
in 2014 are recited, as well as
McLaren’s efforts to mitigate.
(Pros Br, pp 2-3).
• Director Lyon did not become aware of the
number of cases of Legionnaires until January 28,
2015, and it was speculation that the hospital and
the water were potential sources because the data
was not yet collected. (Ex 3; II Miller 99.)
• Evidence of McLaren’s knowledge that it had a
problem in 2014 are not relevant to Lyon in that
time period, who did not know until January 28,
2015.
Discussion of Shannon Johnson’s
October 13, 2014 email. (Ex 18.)
(Pros Br, p 3).
• This email was written before Director Lyon was
even aware of the outbreak, and there is no
evidence this email reached Director Lyon or any
staff at MDHHS above the level of Jim Collins.
(Ex 18.)
“[O]n May 29, 2015, Bohm mailed a
letter to Sue Forrest of McLaren
Hospital Declaring the outbreak of
Legionnaires Disease over.” Staff at
McLaren found this strange.
(Pros Br, p 4).
• This is an email, not a letter, sent by Bohm to the
infection control staffs at all three hospitals on
June 4, 2015. (Ex PP.)
• The Bohm email attached the executive summary
of the June 2014-March 2015 outbreak and
investigation report dated May 29, 2015; it stated
the “outbreak is over” because last reported case
occurred in March 2015 but urges “vigilant”
awareness and surveillance. (Ex PP.)
• On June 5, 2015, GCHD’s Henry notified Collins
that there have been three more confirmed
Legionella cases since beginning of May 2015.
(Ex 69.)
• McLaren knew first hand that new cases were
happening including that two out of the three cases
in May 2015 were associated with McLaren and
3
What the Prosecutor’s Brief says: What the record actually reflects:
that they had many new cases throughout the
summer of 2015. (Ex 59.)
• McLaren was still seeing cases and they continued
to follow clinical guidance after the “outbreak is
over” email. (XI Borowski 67-69.)
• There is no evidence that any of this had to do
with Director Lyon.
Nick Lyon was Director of MDHHS
during the series of events
comprising what is now known as the
“Flint Water Crisis.”
(Pros Br, p 4).
• Nick Lyon became Director of DCH on September
29, 2014. In February 2015, just weeks after he
was notified about a Legionnaires wave in Flint,
DCH merged with the Department of Human
Services and became MDHHS. (Ex 4.) As the
“Flint Water Crisis” was unfolding, Director Lyon
was merging 14,000 employees in Michigan’s two
largest agencies.
The “third” time Lyon was notified
of the outbreak.
(Pros Br, p 5).
• Director Lyon was notified of the outbreak by
Miller and Ex 3 on January 28, 2015.
• On July 22, 2015, he made a note during a meeting
with Muchmore to get an “update on legionnaires
(hospital)” along with notes about many other
Flint water problems. (Ex O, M, ZZ, 67, 68.)
There is no evidence he received any update or
notification about any cases, new or old, on this
date, or any additional information.
• On September 16, 2015, Lyon asks Moran, via his
assistant, for an update on Flint water and among
other things, is told that there is a continued
sustained increase in Legionnaires cases, with
specific data (Ex 23); he gives the information to
the Governor’s office only two days later.
During the meeting on January 11,
2016, “Becker believed that he and
Defendant were learning of the
Legionnaires outbreak for the first
time.”
(Pros Br, pp 5-6).
• Becker also learned of the outbreak on January 28,
2015. (Ex 1, 2, 3.)
• Becker and Lyon learned of the outbreak on the
same day, January 28, 2015 and Becker knew this
on January 28, 2015 because he and Lyon were
copied on the same email. (Ex 3.)
“Becker does not remember
Defendant, at any point during this
conversation, suggesting that the
public be notified.”
(Pros Br, p 6).
• The testimony from Becker was:
• Yeah, as I said that was kind of the AHA
moment if you will that we’ve got something
here that needs to be raised. Needs to go up the
flight.
• What does that mean?
4
What the Prosecutor’s Brief says: What the record actually reflects:
• This information needs to go to the
Governor’s office.
• What about the public?
• Yeah, the conversation on the public I’m sure
was going on throughout this period.” (I
Becker 52).
• Two days after the “aha” moment on January 11,
2016, there was a press conference about
Legionella (I Becker 117-118; Ex 82.) Director
Lyon had a major role.
The Epi Graphs Lyon was shown on
January 28, 2015 indicated a “point
source.”
(Pros Br, p 10).
• The “point source” as of January 28, 2015 was
pure speculation – water source or McLaren
Hospital or something else – because they did not
have the case data they needed. (Ex 3.)
Director Lyon “knew that representa-
tives from the MDEQ and area
hospitals were expressing ‘concerns,’
and knew that the outbreak was likely
connected to the water switch.”
(Pros Br, p 11).
• As of January 28, 2015, the water switch was just
one of several hypotheses, and the source of the
outbreak was all “speculation” because the case
data was incomplete. (Ex 3.)
• Miller said that in January 2015, the MDHHS staff
had one “hypothesis” that the Legionella increase
might be related to the switch to the Flint River,
“but no one wanted to ignore that there might be
other things going on.” (II Miller 94.)
• Miller said there also “was a hospital (McLaren)
of concern” and that was another “hypothesis” in
January 2015. (II Miller 122; III Miller 120.)
• Miller pointed out to Lyon the “temporal
relationship” between the water switch and the rise
in cases. (II Miller 99.)
The July 22, 2015 note on Lyon’s
phone shows that Legionella was “an
ongoing concern.”
(Pros Br, p 11).
• There is no evidence that between January 2015
and July 22, 2015, Legionella was even mentioned
to Director Lyon by anyone.
• Director Lyon learned of the increase in cases in
the Miller meeting and the follow-up email on
January 28, 2015 and shortly thereafter, emailed
Sue Moran to see if things had been worked out
with the GCHD. (II Miller 103.)
• By the time this note is written, Mr. Skidmore and
Mr. Snyder have both contracted the disease.
5
What the Prosecutor’s Brief says: What the record actually reflects:
Director Lyon should have called for
a switch back to Detroit water or
should have immediately tested the
water for Legionella when he learned
of the rise in cases.
(Pros Br, p 12).
• Director Lyon had no responsibility whatsoever
for determining the source of Flint water.
Moreover, the switch in water source was only one
hypothesis, unconfirmed as of the time Lyon
learned of the increase in cases in January 2015.
• None of his staff recommended any particular
action be taken in January 2015, or at any time in
2015.
The “strong statement” email is
between Lyon, Muchmore and
Hollins and evidences Lyon’s “intent
to minimize the public’s awareness of
water problems and his disregard for
properly gathered scientific data.
(Pros Br, p 13).
• Neither Muchmore nor Hollins are included on
Lyon’s “strong statement” email, only MDHHS
staff. (Ex 7.)
• Becker explained that the email was a request by
Director Lyon to have his staff tell him whether
MDHHS lead “data was accurate because it
seemed we had a conflict between ours and Dr.
Hanna-Attisha’s.” (I Becker 31.)
• Dr. Edwards said this email was appropriate and is
nothing more than a sound request by Director
Lyon to his staff to reevaluate its data before
issuing a message to the public about human
health. (XX Edwards 147.)
• This email is about lead, not Legionella and was
sent months after Mr. Snyder and Mr. Skidmore
became ill.
The email exchange between Etue
and Baird on November 26, 2015
about the Governor wanting to work
through the lead emergency without a
disaster declaration shows Lyon’s
“intent to cover up his involvement in
the botched management of the water
crisis….”
(Pros Br, p 13).
• The emergency declaration was about lead, not
Legionella. (Ex 36.)
• The email was from Baird saying that the
Governor wanted “us to work through this without
a disaster declaration of possible;” this was not
Director Lyon’s directive. (III Etue 143.)
• The emergency declaration was issued by the
Governor on January 5, 2016, within weeks of the
Thanksgiving email. (Ex 36.)
• Etue said not every local emergency becomes a
state emergency, it depends on whether resources
are needed from the State. (III Etue 143.) Etue said
that it is common for the state to work through a
local problem without declaring an emergency, yet
still be providing assistance to the locals. (III Etue
155.)
6
What the Prosecutor’s Brief says: What the record actually reflects:
The “strong statement” email and the
Etue/Baird email support the
inference that Lyon’s intent regarding
the Legionella outbreak was to
“minimize public knowledge and
prioritize the reputation of his own
office over the public health.”
(Pros Br, p 13).
• The Etue/Baird email and the “strong statement”
email are about lead, not Legionella.
• There is no evidence that Lyon was concerned
about the reputation of his own office above public
health, or above anything.
Reynolds says Lyon was “glib and
dismissive” of task force questions
about the outbreak and this evidences
Lyon’s intent to act in his own
interests rather than the interests of
public health.
(Pros Br, pp 13-14).
• This meeting was in December 2015 or January
2016 and could not have contributed to Mr.
Snyder or Mr. Skidmore getting sick. (IV
Reynolds 31.)
• Reynolds never identified a single thing that
Director Lyon did or said that was established to
be untrue.
• Director Lyon told Reynolds that the outbreak was
over, and indeed, it had been over for a few
months; the last case was in October 2015.
• Director Lyon referred Reynolds to his
professional staff for more specific answers.
Director Lyon made a demonstrably
false statement on January 13, 2016
when he said during the press
conference that alerting the public
was “part of our effort to be
transparent and share information as
quickly as possible as we can with
the public.” (Pros Br, p 14).
• Director Lyon received the comprehensive June
2014-March 2015 outbreak report for the first time
on January 11, 2016. (Ex 9.)
• Two days later, the press conference was held
detailing the data contained in the comprehensive
June 2014-March 2015 outbreak report. (Ex 82.)
• This was part of an effort to be transparent. The
fact that MDHHS did not conduct a press
conference before the comprehensive outbreak
report was finished shows reasonable caution, not
disregard or recklessness.
Director Lyon knew within months of
the water switch that the water in
Flint was bad, caused rashes and
contained contaminants.
(Pros Br, p 16).
• The water switch was in April 2014. The evidence
is that the Lyon learned about Legionella on
January 28, 2015.
• There is no evidence that Director Lyon knew of
other Flint water problems before then, and the
prosecutor has not charged Director Lyon for
anything in connection with “bad” Flint water,
rashes, or alleged contaminants, only
Legionnaires.
7
What the Prosecutor’s Brief says: What the record actually reflects:
Director Lyon knew on January 28,
2015 that the outbreak was “likely
catalyzed by the water switch and
posed a risk of harm to the
uninformed public.”
(Pros Br, p 16).
• As of January 28, 2015, the water switch was just
one hypothesis and the source of the outbreak was
all “speculation” because the case data was
incomplete. (Ex 3.)
• Miller said that in January 2015, the MDHHS staff
had one “hypothesis” that the Legionella increase
might be related to the switch to the Flint River,
“but no one wanted to ignore that there might be
other things going on.” (II Miller 94.)
• Miller said there also “was a hospital (McLaren)
of concern” and that was another “hypothesis” in
January 2015. (II Miller 122; III Miller 120.)
• Miller pointed out to Lyon the “temporal
relationship” between the water switch and the rise
in cases. (II Miller 99.)
• Lyon was not told that more cases could occur. (II
Miller 99.)
• Lyon was not advised to issue a public notice;
Miller did not suggest any type of public
notification, traditional or otherwise. (III Miller
121.)
It was a “full year” after learning of
the outbreak that Lyon “made any
effort to eliminate contact with the
source or alert the public to known
health risks.”
(Pros Br, p 16).
• See above
• Even the January 2016 public notification could
not, and did not, advise the public of any way to
eliminate contact with the source, because the
source was unknown, nor did it advise the public
of symptoms or any other protective action that
should be taken. No one had the answers. (Ex 22.)
Becker said there was no reason not
to issue a warning at an earlier date.
(Pros Br, p 16).
• Becker did not say this. He did not say this at the
pages cited in the prosecution’s brief or at any
time during his testimony.
Becker said he “could have” issued the “same
warning that you did in 2016 for the groundwater
PFC issue” if he had “known those numbers (from
the Epi Chart) for, in January of 2015” and there is
no threshold or standard that would “prevent you
from warning the public if you knew those
numbers.” (I Becker 57.)
Messrs. Snyder and Skidmore died as
a result of their exposure to
Legionella bacteria that was “due to
the switch in water source from
DWSD to the Flint River, had
• Messrs. Snyder and Skidmore contracted
Legionnaires, if at all, from McLaren. Neither had
any known exposure to Flint water during the
incubation period other than at McLaren. (X
Tribble 14, 30; XIV Skidmore 20.)
8
What the Prosecutor’s Brief says: What the record actually reflects:
flourished in Flint’s municipal water
system.”
(Pros Br, p 17).
“The People have presented ample
evidence that the water in Flint’s
municipal system after the switch
from the DWSD was the source of
Legionella contributing to the
unprecedented disease outbreak in
2014 and 2015.”
(Pros Br, p 20).
• Water testing in December 2014 and August 2015
that was done showed that the incoming water
supply lines to McLaren had no Legionella. (Ex
NN, OO.)
• The water testing done by Edwards’ group in
August 2015 showed no pathogenic Legionella in
any of the Flint homes and small buildings tested.
(Ex NN, Y; XX Edwards 37-38, 52-54, 69-70,
145.)
• Water testing done by Edwards group and also by
FACEHP throughout 2016 showed that Legionella
was not a problem in Flint homes and small
buildings. (Ex 48, KKKK, Y; XX Edwards 71, 52-
54.)
• The Legionella problem was confined to the
hospitals. (Ex Y.)
• The decrease in cases in fall of 2015 coincided
with McLaren’s installation of monochloramine
units, well before switch back to DSWD. (Ex 59.)
• McLaren had another case of Legionnaires
associated with it in November 2016; the sputum
sample from that patient was a genetic “match” to
a Legionella isolate taken from a water sample in
McLaren by the CDC in August 2016; in other
words, McLaren continued to have a Legionella
problem even after the switch back to DWSD
water. (Ex RR.)
Mr. Snyder was “in relatively good
health” before admission to McLaren
(Pros Br, p 17).
• Mr. Snyder’s daughter said this, but Mr. Snyder
had a history of
• chronic lymphocytic leukemia
• coronary artery disease with bypass surgery
• congestive heart failure
• rheumatoid arthritis
• cervical fracture
• Mr. Snyder was also found to have:
• M Kansasii
• osteomyelitis
• P acnes
• decubitus ulcer (XV Kahn 12, 34, 51, 112,
113, 115, 116.)
Regarding Mr. Skidmore, Kahn said
Legionella “seriously impacted his
internal organs, including his heart”;
• Kahn testimony (XV Kahn 99):
• “[Y]ou are confining the organ damage to the
lungs, right?”
• “Right.”
9
What the Prosecutor’s Brief says: What the record actually reflects:
death caused by “severe impact on
his organs.”
(Pros Br, p 18).
• Moreover, lungs are an area outside of Kahn’s
expertise.
• Kahn is not trained to interpret CT scans, either.
(XIV Kahn 101.)
Zervos testified that causes of death
for Messrs. Skidmore and Snyder
“are wholly consistent with
Legionella infection.”
(Pros Br, p 19).
• There is no evidence that Zervos reviewed any
medical records.
• Hypothetical assumed that person “never fully
recovers.” (I Kilgore 167.)
Mr. Skidmore’s health dramatically
declined after Legionnaires, and he
became unable to fully take care of
himself.
(Pros Br, p 18).
• Simultaneous to Mr. Skidmore’s discharge after
recovering from Legionnaires’ disease, his wife of
62 years died from pancreatic cancer. (XIV
Skidmore 14, 15.)
• The loss of a spouse can have a tremendous
impact on someone’s will to live. (XV Kahn 104.)
• After her death, Mr. Snyder lived alone at their
marital home in Mt. Morris until his death on
December 13, 2015. (XIV Skidmore 24.)
• His sons checked in on him twice a day, once in
the morning and once in the evening. (XIV
Skidmore 24.)
• His son testified that he just never seemed to get
better after the hospital stay with Legionnaires’
disease; he would have some good days but would
always revert back to not feeling good. (XIV
Skidmore 24.)
“‛Healthcare associated pneumonia’
is a term that can be used
simultaneously with Legionnaires’
disease.
(Pros Br, p 18-19).
• Kahn says this, because he wrongly believes that
Legionnaires’ disease is the majority of hospital-
acquired pneumonias. (XVI Kahn 34.)
• In fact, Legionnaires’ disease represents no more
than 5% of healthcare associated pneumonias.
(XIX Band 51.)
Director Lyon was duty bound to
notify the public about the outbreak,
make efforts to eliminate the source
and ensure safe water.
(Pros Br, p 20).
• Director Lyon has no duty to notify the public
about an outbreak.
• In Michigan, the MDEQ regulates the water
treatment processes statewide, including the
FWTP in Flint, and is responsible for ensuring
safe water under federal standards. (VIII
McElmurry 107.)
• MDHHS has no role in the water treatment
process. (VIII McElmurry 108.)
10
What the Prosecutor’s Brief says: What the record actually reflects:
• Again, MDEQ was holding out the water as being
treated properly and that it was working through
the numerous problems resulting from the switch,
which it described as natural problems with the
change, not a manmade problem due to the lack of
corrosion control treatment. (Ex 39, 28.) It was not
until the DelToral EPA memo of June 24, 2015
that it became publicly known that MDEQ was not
treating the water for corrosion and was not in
compliance with the federal Lead and Copper
Rule. (VIII McElmurry 119; XX Edwards 23-25;
Ex R.)
The experts need not agree that the
water was the source, but it can be an
inference.
(Pros Br, p 20).
• If the experts, with the benefit of hindsight, 20/20
vision, and reams of additional data cannot agree
that the water was the source, it is not reasonable
to say that Director Lyon should have known that
fact in May and June of 2015.
“[M]ultiple witnesses attributed the
Legionella outbreak to the water
switch.”
(Pros Br, p 20).
• No witness attributed the outbreak solely to the
switch.
• McElmurry said on the record and in a paper that
he wrote that “water chemistry in the Flint River
lead to conditions that could have been conducive
to biological growth and propagation of Legionella
in the distribution system.” (emphasis added) (VIII
McElmurry 101-102; Ex P, p 25.)
• Edwards said the switch in the water source was
one of the “key triggers” for the outbreak but not
the cause. (XX Edwards 118.) He said that
buildings following proper Legionella control
strategies would not have a problem defending
against Legionella growth even with really
“screwed up” water. (XX Edwards 149.) Only in
certain buildings that had inadequate infection
control strategies was there a problem. (XX
Edwards 149.) And, there was no evidence that
there was Legionella in the Flint homes, contrary
to his own hypothesis. (XX Edwards 150.)
• Edwards found it absurd that there was a “plume”
of Legionella moving through the municipal water
system: Legionella does not work that way, there
has never been a case where that has happened and
there was plenty of evidence that was not
happening in Flint due to the lack of Legionella
11
What the Prosecutor’s Brief says: What the record actually reflects:
anywhere other than the hospitals. (XX Edwards
43.)
The Legionella outbreak “ended
contemporaneously with the switch
back. . . .”
(Pros Br, p 20).
• The outbreak actually ended contemporaneously
with McLaren’s installation of monochloramine
units beginning in August 2015, well before the
switchback on October 16, 2015.
• Water source for Flint switched back to Detroit
water on October 16, 2015. (Ex P, p 24.)
• Cases started declining before then and after
McLaren installed monochloramine units in
August 2015; there was only one case in October
2015 even though Flint water was used for more
than half of the month.
• August 2015 – 13 cases
• McLaren engages Janet Stout;
hyperchlorinates system on August 14, 2015
(Ex V) and then later in the month, installs first
monochloramine unit. (Ex 59.)
• September 2015 – 9 cases
• McLaren installs second and third
monochloramine units. (Ex 59.)
• October 2015 – 1 case
• October 16, 2015 – Flint municipal water supply
switched back to DWSD.
• November 2015 – 0 cases
• McLaren installs fourth, fifth monochloramine
units. (Ex 59.)
• Moreover, McLaren had another case in
November 2016; over a year after the switchback.
(Ex RR.)
Zervos said that notice to the “public
and providers” would have made it
more likely for physicians to
recognize cases.
(Pros Br, p 21).
• Zervos refers only to physician notice, not to
public notice. (II Zervos 9.)
• As has been discussed repeatedly, notice and
clinical guidance was given to the medical
community by GCHD at the suggestion of
MDHHS staff on February 13, 2015, June 1, 2015
and June 29, 2015. (Ex B, LL, MM.)
Miller acknowledged it would have
been “reasonable perhaps to release
information earlier rather than later. .
..”
(Pros Br, p 21).
• Miller stated that using hindsight or “in retrospect”
or exercising “Monday Morning Quarterbacking,”
a “non-traditional advisory,” one based on an
incomplete investigation and not mentioning any
source, was possible or reasonable. (II Miller 96;
III Miller 48, 119-121.)
12
What the Prosecutor’s Brief says: What the record actually reflects:
• Miller believed at the time that the necessary
information had not been collected and there was
not enough information about source/exposure.
Miller never recommended a non-traditional
advisory and believed it was not a good idea, using
traditional thinking. The staff agreed. (III Miller
47-48.)
“Had the Defendant promptly
mandated a switch back to safe
drinking water, the source of
Legionella infections would have
been eliminated before Mr. Skidmore
and Mr. Snyder contracted this
deadly disease.”
(Pros Br, p 21).
• There is no evidence of this.
• As noted above, neither Mr. Skidmore nor Mr.
Snyder had any exposure to Flint water during the
incubation period other than at McLaren.
• There is no evidence that changing the water
source would have eliminated McLaren’s
Legionella problem.
• The only evidence is that McLaren’s Legionella
problem subsided with the installation of
monochloramine units (Ex 59.)
• A patient contracted Legionnaires at McLaren in
November 2016, more than a year after the
switchback. (Ex RR.)
“Similarly, had Defendant issued a
public notice about Legionnaires’
Disease a year earlier, citizens in
Genesee County, including Mr.
Snyder and Mr. Skidmore, could
have taken precautions and protected
themselves from harm.”
(Pros Br, p 21).
• There is no evidence of this.
• The evidence is exactly the opposite from Band,
Reilly and Miller: without knowing a source, there
was nothing the public could have been told in
2015 that would have advised them how they
could protect themselves. (XXIII Reilly 65-68;
XIX Band 143-144; II Miller 96; III Miller 48,
119-121.)
“Borowski testified that had
Defendant issued a notice to the
public in 2014, hospital operations
going forward would have been
different.”
(Pros Br, p 21).
• Director Lyon did not know of any increase in
cases until January 2015, making it impossible for
him to issue a notice in 2014.
• Borowski did not give a single example of how the
hospital would have operated differently with a
2014 notice. (XI Borowski 102.)
• When MDHHS issued a public notice in 2017
about McLaren’s continued Legionella problem
and lack of compliance with the CDC, Borowski
felt intimidated. (XI Borowski 92); so, when
MDHHS did specifically notify the public of a
problem at McLaren, McLaren did not like hearing
it.
13
What the Prosecutor’s Brief says: What the record actually reflects:
“The People have presented evidence
to support the inference that had
people of Flint been given adequate
warning, they would have responded
in a way that minimized their risk of
exposure to unsafe conditions” and
cite a paper written by McElmurry
and others that says following the
boil water advisories in August/
September 2014, bottle water usage
went up in Flint and blood lead levels
went down.
(Pros Br, p 22).
• As noted above, the only evidence is that there
was nothing the public could have been told in
2015 that would have advised them how they
could protect themselves and minimize their risk
of Legionella exposure, other than not to go to
McLaren hospital which would have been reckless
to do under the circumstances and based on what
was known. (XXIII Reilly 65-68; XIX Band 143-
144.)
• Abstaining from lead contaminated water would
be an effective way to reduce blood lead levels.
(VII McElmurry 65-68.)
• Using bottled water would not be an effective way
to keep someone from getting Legionnaires. (IX
McElmurry 8-9, 12-13.)
“Here, Defendant had direct
knowledge of the Legionnaires’
Disease outbreak and the harm that
would result from his failure to alert
the public. He simply chose to do
nothing.”
(Pros Br, p 23).
• As noted repeatedly, Director Lyon was never told
that another outbreak could occur.
• There is no evidence alerting the public could
have, or would have, had any effect on preventing
harm because there was nothing the public could
have been told to do to take protective action.
(XXIII Reilly 65-68; XIX Band 143-144.)
• Director Lyon did act. His choice of action was to
order the investigation be done as a priority. (Ex
28.) He made sure that MDHHS staff and GCHD
had worked through their difference shortly after
he learned of the rise in cases. (II Miller 103.) The
investigation was comprehensive, and the medical
community was on high alert about the outbreak,
as was the CDC, EPA, GCHD, MDEQ,
Governor’s office, all three hospitals and City of
Flint officials. (XIX Band 121; Ex B, LL, MM, 69,
FFFF, PP, R.)
Director Lyon delegated the duty to
investigate the Legionnaires outbreak
to FACHEP “before undertaking to
undermine the group’s efforts and
delay the initiation of FACHEP’s
important health-related research.”
(Pros Br, p 24).
• Lyon delegated the duty to investigate the
outbreak to his staff and the GCHD in 2015. (Ex
28; III Miller 61-62.)
• The Governor asked that FACHEP be formed and
it was not a public health investigation under
statute. (VI Kilgore 93; II Zervos 19-20.)
• There is no evidence that Lyon slowed down the
contracting process in any way. McElmurry was
unable to point to anything Lyon said or did to
delay the execution of the contract and noted there
were several standard administrative issues that
14
What the Prosecutor’s Brief says: What the record actually reflects:
had to be worked through (a data use agreement,
an IRB), as well as a protective order obtained by
the prosecutor and a legislative appropriation
process, before the contract could be executed. (VI
Kilgore 90-92; VII McElmurry 63-65, 67-68, 74-
75.)
• There is evidence that delay was caused by:
(1) FACHEP’s one-month delay in entering its
contract information into the eGrAMS system, and
(2) FACHEP’s refusal to take any water sample
until months after the appropriation had been
made, none of which is attributable to Director
Lyon. (XXI Hanley 29; (XII McElmurry 108.)
• There is no evidence Director Lyon undermined
FACHEP’s investigation; only that he and others
expressed scientific “skepticism” about the value
of the filter study, that ended up being fully funded
and fulfilled by FACHEP in any event. (VIII
McElmurry 47-48, 51, 77, 80-83; VII McElmurry
94; Exhibit 52.)
“McElmurry opined that it would
cost about a million dollars and
Hollins replied that money was not
an issue.”
(Pros Br, p 25).
MDHHS awarded FACHEP $250,000 for Phase I.
(II Zervos 26-27; XXI Hanley 16.) On April 29,
2016, FACHEP presented a Phase II plan for
about $12 million to MDHHS staff. (XII
McElmurry 23; Ex TT.)
“FACHEP researchers wished to start
sampling for Legionella during the
summer of 2016, when the presence
of Legionella would typically
increase.”
(Pros Br, p 25).
• FACHEP did not begin taking any water samples
until September 2016 (XII McElmurry 108), even
though the contract had an effective date of June 1,
2016 (having been appropriated by June 23, 2016),
was executed August 16, 2016 and McElmurry
testified that collecting water samples is an easy
undertaking that could be done in a day and costs
maybe $1000 to $2000. (XIII McElmurry 12-13;
XII McElmurry 112.)
FACHEP’s plan was to sample 284
homes in Flint and compare to home
samples in the surrounding area.
(Pros Br, p 25).
• Dr. Edwards said that given his own testing of the
homes in 2015 and 2016 which showed no
Legionella, and FACHEP’s testing in January
2016 showing no Legionella in the homes, he did
not understand why they were sampling so
extensively “where the Legionella were not.” (XX
Edwards 71.)
15
What the Prosecutor’s Brief says: What the record actually reflects:
• Edwards said FACHEP should have been focusing
on large buildings. which was perfectly clear from
his, and FACHEP’s, data. (XX Edwards 71-72.)
“Contract negotiations were unduly
delayed and protracted for the
apparent purpose of preventing
FACHEP’s research.”
(Pros Br, p 26).
• There is no evidence of this.
• Funding for FACHEP was a top priority of Lyon
and MDHHS (Ex SSSS, p 10; Ex RRRR; XXI
Hanley 21, 32.)
• There is no evidence that Lyon – or anyone at
MDHHS – intentionally or inadvertently slowed
down the contracting process in any way. As noted
above, standard administrative issues, a
Legislative appropriation, a protective order and
FACHEP’s own delays with the eGrAMS system
resulted in the contract taking time to be executed.
Director Lyon said he “can’t save
everyone” in the May 16, 2016
meeting with FACHEP.
(Pros Br, pp 26-27).
• Hanley said that Director Lyon did not say
anything like this. (XXI Hanley 82.)
• Kilgore was profane and pounding on the table but
denied doing so. (IX McElmurry 57-58; XXI
Hanley 50-51; VI Kilgore 123.)
• Regardless, as noted above, there is no evidence
that Director Lyon did a single thing (or failed to
do a single thing) that slowed the FACHEP
appropriation and contracting process in any way.
“Defendant had different objections
to parts of the home sampling study
at different times.”
(Pros Br, p 27).
• Regarding the home water testing study, Director
Lyon was, at times, not in favor of doing the filter
portion of the study. (VII McElmurry 90.)
• The filter study is the only portion of FACHEP’s
work about which Director Lyon expressed any
concern. The filter study was the only real
“sticking point” with MDHHS. (XII McElmurry
27.)
• Nevertheless, the filter study was fully funded and
fulfilled.
Director Lyon and others expressed
“strong resistance” to McElmurry’s
research at an August 5, 2016
meeting.
(Pros Br, p 27).
• There had been a meeting on August 5, 2016 with
McElmurry, Wells, Lyon, Baird and Scott
Hiipakka (Governor’s office) about the scope of
Phase II, where McElmurry said “they were quite
resistant” to the household sampling, particularly
the shower filters. (VIII McElmurry 72-74.)
• MDHHS concerns were legitimate, scientific
questions. (VII McElmurry 28-29.)
16
What the Prosecutor’s Brief says: What the record actually reflects:
• As noted repeatedly, FACHEP was still fully
funded for the filter study within 11 days of this
meeting.
• Edwards also questioned the scientific value of the
filter study (XX Edwards 71-72) and like Lyon,
believed that FACHEP messaging to the public
about the possibility of bacteria in the filters –
which had been very helpful to improving water
for Flint citizens – could be, and was, harmful to
Flint residents. (XX Edwards 89-90.)
• There is no evidence that the EPA was not, in fact,
against this type of sampling by FACHEP.
“Dr. McElmurry testified that during
this discussion (FWICC August 12,
2016), Defendant’s ‘tone and
demeanor suggested he was very
skeptical’” of the filter study.
(Pros Br, p 28).
• True. Director Lyon’s “skepticism” about the filter
study was that he asked McElmurry to explain the
proposal to Director Keith Creagh of MDEQ and
said that he had to balance the importance of the
study with upsetting the public. (VII McElmurry
94; Exhibit 52.)
“By delaying the execution of the
contract, Defendant forced FACHEP
to collect subpar data in an effort to
prevent FACHEP from connecting
the switch in Flint’s drinking water
source to the Legionnaires Disease
outbreak.”
(Pros Br, p 29).
“Defendant’s act of preventing
further research was committed with
the intent to prevent the public from
learning about the DHHS’s
abdication of duty with respect to
Legionnaires. . ..”
(Pros Br, p 30).
• As discussed above, Lyon did nothing to delay the
execution of the contract; he sought funding as a
priority.
• There is no evidence that anything Lyon did
relative to FACHEP was an effort to prevent
FACHEP from discovering information about the
outbreak.
• There is no evidence Lyon prevented research by
FACHEP.
• It was FCAHEP’s decision not to conduct water
sampling until September 2016 (XII McElmurry
108), even though the contract had an effective
date of June 1, 2016 (having been appropriated by
June 23, 2016), and McElmurry testified that
collecting water samples is an easy undertaking
that could be done in a day and costs maybe
$1,000 to $2,000. (XIII McElmurry 12-13;XII
McElmurry 112.)
• There is no evidence that FACHEP’s data was
subpar; in fact, the results of FACHEP’s data were
completely consistent with what Edwards’ group
had found in its August and October 2015
samplings and throughout 2016: Legionella in
about 12 percent of the homes sampled, both
Legionella pneumophila and other non-pathogenic
17
What the Prosecutor’s Brief says: What the record actually reflects:
strains, and that this is on the low-end of national
averages. (VIII McElmurry 165-166; XII
McElmurry 59; XX Edwards 50-52.)